SZCZO v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 738

FEDERAL COURT OF AUSTRALIA

SZCZO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 738

SZCZO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 285 of 2005

ALLSOP J
3 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 285 of 2005

BETWEEN:	SZCZO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	3 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal from the orders of the Federal Magistrate made on 4 February 2005 be dismissed.

2.The applicant pay the respondent's costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 285 of 2005

BETWEEN:	SZCZO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	3 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from orders made by the Federal Magistrate on 4 February 2005. The orders of the Federal Magistrate were interlocutory. The Federal Magistrate dismissed the application of the applicant made under s 39B of the Judiciary Act under rule 13.03(2) (b) of the Federal Magistrates Court Rules. That provision is enlivened in the circumstances here when the applicant failed to comply with an order of the Court in circumstances which I will relate.

2. The applicant's application under s 39B of the Judiciary Act 1903 (Cth) was filed in the Federal Magistrates Court on 15 March 2004. There was an assertion of an available possible ground of claim by the assertion that there was no evidence or other material to justify the making of the decision. The balance of the application did not give any context or precision to that assertion.

3. Apparently the applicant had not attended before the Tribunal. The Tribunal not being satisfied of Australia's protection obligations as it was obliged to do under ss 36 and 65 had refused to grant a visa, however, those matters as to the correctness or otherwise of the approach of the Tribunal are not the issues before me.

4. The issue before me arises from the fact that after the application under s 39B was filed orders were made by consent by the Registrar for the conduct of the application. Orders 1 and 2 of the directions made on 21 July 2004 were in the following terms:

   1.The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely.

   2.If an amended application is not filed in accordance with Order 2 above, the respondent may request that the registry list the matter in a non compliance list before the Federal Magistrate with the intention of applying for summary dismissal due to non compliance with a direction of the Court. The respondent is to advise the applicant of the time, date and place of any such listing.

5. The applicant failed to comply with order 1.  The respondent's solicitors took advantage of the leave granted by order 2 and listed the matter before the Federal Magistrate.  At the hearing before the Federal Magistrate the applicant indicated that she had left the task of dealing with the matter to a friend and the Federal Magistrate was otherwise unpersuaded as to the request by the applicant for further time to comply with the order.

6. After hearing the Minister's representative the Federal Magistrate thought it appropriate to exercise the power under Rule 13.03(2) (b) of the Federal Magistrates Rules.  I am unable to identify any error of principle in the approach of the learned Federal Magistrate. 

7. It should be understood by the applicant that the orders of the Federal Magistrate are not final but interlocutory.  They do not deal with her application on the merits.  If there is a claim for jurisdictional error capable of being formulated by the applicant that further claim can be made and proceedings filed in the Federal Magistrates Court.  The respondent may wish to continue to have the matter dealt with on an interlocutory basis if such a renewed application is inadequate on its face but it should be understood by the applicant that the Federal Magistrate's orders and the orders that I make today do not deal with the matter finally. 

8. For the above reasons, I order that the application for leave to appeal from the orders of the Federal Magistrate made on 4 February 2005 be dismissed and the applicant pay the respondent's costs of the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             6 June 2005

The Applicant appeared in person with the assistance of a Mandarin interpreter.
Counsel for the Respondent:	Mr A Carter (Slr)
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 June 2005
Date of Judgment:	3 June 2005