SZECW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 154

FEDERAL COURT OF AUSTRALIA

SZECW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 154

SZECW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1731 of 2004

BRANSON J
16 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1731 of 2004

BETWEEN:	SZECW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	16 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The purported appeal to this Court be dismissed. 

2.The applicant pay the respondent’s costs of the proceeding fixed at $1500.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1731 of 2004

BETWEEN:	SZECW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	16 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. On 23 November 2004 the purported appellant (who I will refer to as the applicant) purported to appeal from a decision of the Federal Magistrates Court dated 22 November 2004.  On that day Federal Magistrate Raphael dismissed the applicant’s application to the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) that affirmed a decision of a delegate of the respondent that the applicant is not entitled to a protection visa.  Although the terms of the order made by the learned Federal Magistrate might suggest that the order was intended to be a final order, the true position is, I think, that his Honour dismissed the application as being incompetent thereby upholding a notice of objection to competency that had been filed by the respondent.  If that be the true position, as I think that it is, the applicant requires the leave of this Court to appeal from his Honour’s decision.

2. When the matter was before me for directions on 8 February 2005 I made an order, at the request of the respondent, that the matter be listed for hearing subject to any direction of the Chief Justice that the appeal be heard by a Full Court.  In the meantime the respondent has filed a notice of objection to competency in respect of the appeal. 

3. On 8 February 2005 I ordered the applicant to file and serve written submissions by no later than 4.00 pm on Thursday 10 February 2005.  That order has not been complied with, nor has the applicant appeared today upon his purported appeal being called on for hearing.  The purported appeal was called 15 minutes after the scheduled hearing time to accommodate the possibility that the applicant had experienced a problem in reaching the Court on time.  The court officer has called the applicant outside this Court and on the level of the court registry. 

4. I have, in the above circumstances, not had any assistance from the applicant but nothing that I have seen suggests that there is any merit in the appeal which the applicant wishes to run.  The chronology helpfully prepared by the respondent touching on the applicant’s attempts to obtain a visa shows that he has twice sought judicial review of the decision of the Tribunal that affirmed the decision of a delegate of the respondent that the applicant is not entitled to a protection visa.  I note further that the applicant declined an invitation issued to him by the Tribunal to attend the hearing before that Tribunal. 

5. It is almost impossible to imagine a basis upon which leave could have been granted to the applicant to appeal the decision of the learned Magistrate and almost impossible to conceive of any basis upon which any appeal could succeed. I have, however, been requested by the respondent’s counsel to dismiss the purported appeal on the basis that the applicant has not complied with the directions made by the Court on 8 February 2005 (see s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth)). It seems to me that s 25(2B)(bb)(ii) of that Act is another source of power to dismiss this purported appeal. The hearing listed today was, in my view, a hearing relating to the purported appeal.

6. In all of the circumstances I consider it appropriate that the purported appeal to this Court be dismissed.  There will be an order that the applicant pay the respondent’s costs fixed at $1500. 

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

Associate:

Dated:             1 March 2005

Counsel for the Applicant:	The Applicant did not appear.
Counsel for the Respondent:	B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 February 2005
Date of Judgment:	16 February 2005