SZDUP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 814

FEDERAL COURT OF AUSTRALIA

SZDUP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 814

Migration Act1958 (Cth) s 424

Federal Magistrates Court Rules rule 13.03A(c), 16.05(2)

SZDUP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 641 OF 2005

HELY J
7 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 641 OF 2005

BETWEEN:	SZDUP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	7 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed with costs.

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 641 OF 2005

BETWEEN:	SZDUP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE:	7 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 19 May 2004 the Refugee Review Tribunal (‘the RRT’) handed down its decision affirming the decision of the Minister’s delegate not to grant a protection visa to the applicant. Prior to making its decision, the RRT invited the applicant, by letter dated 23 March 2004 and pursuant to s 424 of the Migration Act1958 (Cth) (‘the Act’), to provide specified information in relation to her refugee claims to the RRT by 14 April 2004. The applicant did not respond to that request and the RRT hearing scheduled for 20 April 2004 was cancelled.

2. The RRT found that the applicant’s claims were not supported by the country information which had been put to the applicant in the RRT’s letter of 23 March 2004, hence the RRT was not satisfied that her claims had been made out.

3. On 10 June 2004 an application for a review of the RRT’s decision was made to the Federal Magistrates Court. On 16 September 2004 at a directions hearing before the Federal Magistrates Court the matter was set down for hearing at 10.15 am on 8 April 2005. The applicant did not appear at the hearing before Mowbray FM on 8 April 2005. In the exercise of his discretion under rule 13.03A(c) of the Federal Magistrates Court Rules his Honour dismissed the application.  In par 9 of the reasons for decision the Federal Magistrate said:

   ‘I have given consideration to whether there might be any discretionary matters which should be taken into account and which would compel me not to exercise that discretion.  I am not aware of any. ‘

   Accordingly, his Honour dismissed the application by reason of the applicant’s non-attendance.  That decision is in point of law interlocutory in character, hence an appeal from it may only be brought by leave.

4. On 26 April 2005 an application for leave to appeal to this Court was made.  In the applicant’s affidavit filed in support of that application she asserts that she was misled by an unnamed friend as to the time when the matter was listed for hearing before the Federal Magistrates Court.  When she went to Court at 2.15 pm on 8 April 2005 she was told that she had missed the hearing which had taken place at 10.15 am.

5. It is not for this Court to exercise the jurisdiction of the Federal Magistrates Court under rule 16.05(2) of the Federal Magistrates Court Rules, and I say nothing as to the operation or application of that rule should the applicant seek to invoke it.  It is sufficient for present purposes to note that the issue before me is whether there is an arguable case that the Federal Magistrates Court wrongly exercised its jurisdiction to dismiss the proceedings under rule 13.03(A)(c).  The applicant has not established such a case.  The Federal Magistrate was perfectly entitled to proceed in the way in which he did.

6. There is nothing in the papers which I have read which discloses any arguable case of jurisdictional error on the part of the RRT.  The application for leave to appeal should be dismissed with costs, as any appeal from the Federal Magistrate’s decision would be without any realistic prospects of success.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            20 June 2005

The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 June 2005
Date of Judgment:	7 June 2005