SZCZS v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 940

FEDERAL COURT OF AUSTRALIA

SZCZS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 940

SZCZS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS 

N 947 of 2004

WHITLAM J
SYDNEY
14 JULY 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 947 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCZS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	14 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application for an adjournment is refused.

2The appeal is dismissed as incompetent.

3The appellant is to pay the respondent’s costs of the appeal.

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	N 947 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCZS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	14 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding purports to be an appeal from a judgment of the Federal Magistrates Court summarily dismissing an application to that Court in respect of a decision of the Refugee Review Tribunal handed down on 17 October 1997.  The background to the proceeding in that Court is comprehensively set out in the reasons for judgment of the Federal Magistrate: SZCZS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 340.

2. The Minister has objected to the competency of this appeal.  An order dismissing an application as an abuse of process, such as that made by the Federal Magistrates Court, is an interlocutory judgment: Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101. Accordingly, leave is required by virtue of s 24(1A) of the Federal Court of Australia Act 1976 to appeal from such a judgment.

3. The opportunity was given at the first directions hearing in this matter to permit the appellant to make an application out of time for leave to appeal.  No such application was made.  Upon the matter being called on for hearing today the appellant, who has the misfortune to be acting for himself, sought an adjournment.  He said that he did not have a lawyer and had not been able to obtain one.  I refused that application because there was no evidence of any prospect that a lawyer could be retained.  The objection to competency is upheld, and the appeal will be dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            19 July 2004

The appellant appeared in person

Solicitor for the respondent:	Andras Markus of the Australian Government Solicitor
Date of hearing:	14 July 2004
Date of judgment:	14 July 2004