SZDVW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 674

FEDERAL COURT OF AUSTRALIA

SZDVW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 674

SZDVW V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 362 OF 2005

EDMONDS J

6 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD362 OF 2005

BETWEEN:	SZDVW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EDMONDS J
DATE OF ORDER:	6 May 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the day in the sum of $300.00.

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	NSD362 OF 2005

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

JUDGE:	EDMONDS J
DATE:	6 May 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

1. This is an application for leave to file a notice of appeal out of time.  The respondent opposes the application.

2. The reasons relied on by the Federal Magistrates Court in dismissing the applicant’s application were twofold: one was for default in taking a particular step in the proceedings, namely to file and serve an amended application; the second was the applicant’s failure to attend the hearing.

3. The applicant filed an affidavit in which he stated that he did not receive an invitation to the hearing before the Federal Magistrates Court.  He says that he changed his address and the court sent a letter to his old address.

4. The applicant’s affidavit goes some way to explaining why he did not appear at the hearing before the Federal Magistrates Court but it does not deal with the other matter upon which the court relied for dismissing the application, namely his failure to comply with a direction which the court made for the filing of an amended application.

5. I invited the applicant to draw to my attention any matter in support of his application, in addition to the affidavit.  The applicant says that the judgment of the Tribunal has judicial mistakes and that he has provided more material to it.  He thinks the Tribunal’s decision needs review and that the Federal Magistrates Court did not let him do that.  The applicant also says that, generally speaking, he should be provided another opportunity to appear.

6. None of these submissions address the second basis for the Federal Magistrate’s decision, that the applicant had failed to comply with a direction to file an amended application. 

7. Despite what the applicant has said in his affidavit and from the bar table today the Federal Magistrate was satisfied that:

   The applicant has had proper and adequate notice of today's
    proceedings and did not appear nor provided any explanation for his
    inability to appear or to take the opportunity to explain the non
    compliance with the court's orders.

8. Further, if I was to accede to this application I do not think any ensuing appeal has any prospects of success, let alone any reasonable prospects.  I therefore dismiss the application.

9. The respondent seeks an order for costs relating to today’s appearance in the sum of $300.00.  I make that order.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:            30 May 2005

The applicant appeared in person
Counsel for the Respondent:	Ms A Nanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 May 2005
Date of Judgment:	6 May 2005