SZDMG v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1672

FEDERAL COURT OF AUSTRALIA

SZDMG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1672

SZDMG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1725 OF 2004

EMMETT J
17 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1725 OF 2004

BETWEEN:	SZDMG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	17 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the proceeding.

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

NSD1725 OF 2004

BETWEEN:

SZDMG

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:

EMMETT J

DATE:

17 DECEMBER 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. By notice of appeal, filed on 23 November 2004, the appellant purports to appeal from orders made by Smith FM on 3 November 2004, dismissing the proceeding as incompetent. His Honour observed that the proceeding had been commenced some four years after the decision of the Tribunal in respect of which review was sought. No explanation was offered for that delay. Smith FM considered the substance of the matter and concluded that there was no jurisdictional error. Accordingly, his Honour concluded that the proceeding was barred by s 477(1)(a) of the Migration Act 1958 (Cth) (‘the Act’) and, in any event, in the absence of any jurisdictional error, any relief would be precluded by s 474 of the Act.

2. The notice of appeal to this Court indicates that it has been prepared without reference at all to the reasons of the primary judge.  Since the order of the primary judge was in the nature of an interlocutory order, leave to appeal would be required. No application for leave has been made.  When the matter was called on for directions today there was no appearance for the appellant.  The Minister therefore asks that the matter be dismissed.  It seems to me that it is appropriate to do so, in the circumstances. 

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             12 August 2005

No appearance for the Appellant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 December 2004
Date of Judgment:	17 December 2004