SZDVQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 517

FEDERAL COURT OF AUSTRALIA

SZDVQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 517

SZDVQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 383 OF 2005

MADGWICK J
26 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 383 OF 2005

BETWEEN:	SZDVQ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	26 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.          The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs, assessed in the amount of $600.       

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 383 OF 2005

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

JUDGE:	MADGWICK J
DATE:	26 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is an application seeking leave to appeal from an interlocutory judgment of Federal Magistrate Mowbray given on 24 February 2005. His Honour dismissed the applicant’s application to the Federal Magistrates Court under rule 13.03(2)(b) of the Federal Magistrates Court Rules on the ground that the applicant had failed to comply with an order of the Court, namely failure to file an amended application setting out proper grounds with full particulars within the time required. The applicant had sought judicial review from the lower Court of an adverse decision of the Refugee Review Tribunal (‘the Tribunal’).

2. Despite being invited to attend the hearing of the Tribunal, the applicant neither attended nor responded to the invitation.  On 22 September 2004, consent orders were made by the Federal Magistrates Court including an order that the applicant file and serve, on or before 30 November 2004, an amended application setting out in full the grounds of his application to the Court and the particulars of those grounds relied on, together with any evidence.  The applicant was advised by the respondent in January of this year that the respondent would seek to have the application to that Court dismissed for failure to comply with the orders of the Court.

3. However, at the hearing of the matter before the Federal Magistrate on 24 February 2005, as his Honour said:

   ‘… when provided with an opportunity at the current hearing to explain his position and provide a response to the orders sought by the Minister, … [the applicant] had nothing to say.’

4. The Federal Magistrate concluded that there was ‘no good reason for continuing this matter’.

5. The test might, with respect, have been better phrased as being whether the applicant had shown adequate reason to be relieved of the consequence of non-compliance with the Court’s order.  That makes little difference, however, because the applicant provided no explanation of that failure to comply and it is true, I think, as the learned Federal Magistrate appears to have found, that the prospects of success of the application before the Federal Magistrates Court were so poor that it would be futile, in any event, to relieve him from that non-compliance.

6. In his application for leave to appeal from that interlocutory judgment of the learned Federal Magistrate, the applicant says that he fears persecution in his original country because he is a Falun Gong practitioner and that fear is well founded because he was gaoled when in China.  His draft appeal likewise refers to factual matters. 

7. No relevant error of principle and no misapprehension of fact on the part of the learned Federal Magistrate is shown.  It seems to me too that the prospects of jurisdictionally challenging the Tribunal’s decision are so faint as to make the grant of leave to appeal futile. 

8. The application for leave to appeal is dismissed with costs.  The applicant is to pay the respondent’s costs assessed in the sum of $600.

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

Associate:

Dated:             4  May 2005

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 April 2005
Date of Judgment:	26 April 2005

-