SZEDP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1083

FEDERAL COURT OF AUSTRALIA

SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1083

Federal Magistrates Court Rules 2001 Rule 16 Order 5(2)

SZEDP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1162 of 2005

BRANSON J
28 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1162 of 2005

BETWEEN:	SZEDP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	28 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Both of the applications filed in this Court by the applicant be dismissed.

2.The applicant pay the respondent’s costs of the two applications fixed in the sum of $500.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1162 of 2005

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

JUDGE:	BRANSON J
DATE:	28 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 13 July 2005 the applicant filed two separate initiating documents in this Court.  The first of these is an application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court given on 12 April 2005.  By that interlocutory judgment an application by the applicant to have a proceeding earlier dismissed by the Federal Magistrates Court reinstated was dismissed because of his failure to attend the hearing of his re‑instatement application.

2. The second of the initiating documents filed by the applicant is an application for an extension of time within which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court purportedly given on 3 May 2005.  It seems likely that the reference to the judgment given on 3 May 2005 is intended to be a reference to the interlocutory judgment given on 12 April 2005.  The reasons for judgment of the learned Federal Magistrate who dismissed the applicant’s reinstatement application were published on 3 May 2005.  If granted leave to appeal from the interlocutory judgment of 12 April 2005 the applicant does not need an extension of time within which to file and serve a notice of appeal.  The time within which he may file any notice of appeal will run from the grant of leave.  It is therefore only necessary to give consideration to the application for leave to appeal from the judgment of the Federal Magistrates Court given on 12 April 2005 (‘the Judgment’).

3. As mentioned above, the Judgment was given on an application made by the applicant to have a proceeding earlier dismissed by the Federal Magistrates Court reinstated.  The earlier proceeding was an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The applicant had not appeared when his application for judicial review of the decision of the Tribunal was called on for hearing on 24 January 2005.  The Federal Magistrate was satisfied that the applicant had been informed of the time, location and significance of the hearing.  Nonetheless, he decided not to dismiss the application in reliance on the applicant’s failure to attend the hearing but rather gave consideration to the merits of the application for judicial review.  His Honour was unable to identify any jurisdictional error made by the Tribunal and dismissed the application for judicial review.

4. The applicant thereafter applied to the Federal Magistrates Court to have his application for judicial review of the decision of the Tribunal reinstated.  However, as mentioned above, he did not attend the hearing of his reinstatement application and the application was dismissed in his absence.

5. The applicant has sworn an affidavit in which he states that he was unable to attend the hearing, which he describes as a final hearing, scheduled for 12 April 2005 because he was unwell.  He has not filed any evidence in this Court to explain his failure to attend the Federal Magistrates Court on 24 January 2005.  However, the application which he filed in the Federal Magistrates Court (ie the application that the Federal Magistrate treated as a reinstatement application) indicated that he made a conscious decision not to attend the Federal Magistrates Court on 24 January 2005 as he had not been able to obtain legal advice because of problems of translation.

6. I do not consider it appropriate to grant the applicant leave to appeal from the interlocutory judgment of the Federal Magistrates Court given on 12 April 2005. As the Federal Magistrate clearly appreciated, the applicant lost no substantive rights by the dismissal of his application in his absence. Rule 16 Order 5(2) of the Federal Magistrates Court Rules 2001 authorises the Federal Magistrates Court to set aside or vary its orders after they have been entered if the order is made in the absence of a party. At [9] of his Honour’s reasons for judgment he noted that the applicant was entitled to apply to the Court to set aside or vary its orders if he wished to do so. As that course is open to the applicant it would not be appropriate to grant the applicant leave to appeal from the Judgment.

7. Both of the applications filed in this Court by the applicant will be dismissed.

8. It will be ordered that the applicant pay the respondent’s costs of the two applications fixed in the sum of $500.

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

Associate:

Dated:             5 August 2005

Counsel for the Applicant:	The Applicant appeared in person.
Advocate for the Respondent:	J Bird
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	28 July 2005
Date of Judgment:	28 July 2005