SZEDQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 591

FEDERAL COURT OF AUSTRALIA

SZEDQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 591

MIGRATION – application for extension of time for leave to appeal from judgment of Federal Magistrates Court given in absence of applicant – refused as application to set aside should be made to Federal Magistrates Court

Rules of Federal Magistrates Court, Pt 13.04, Pt 16.05

SZEDQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 571 OF 2005

GYLES J
4 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 571 OF 2005

BETWEEN:	SZEDQ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	4 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for extension of time for leave to appeal is dismissed.

2.   The applicant pay the costs of the respondent.

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	NSD571 OF 2005

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

JUDGE:	GYLES J
DATE:	4 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application both for an extension of time in which to file and serve a notice of appeal and for leave to do so.  The circumstances are that on 17 February 2005 (SZEDQ v Minister for Immigration [2005] FMCA 129) Federal Magistrate Lloyd-Jones dismissed an application for review of a decision of the Refugee Review Tribunal made on 15 June 2004. That judgment was given in the absence of the applicant in accordance with Pt 13.04A(d). Part 16.05 of the Federal Magistrates Rules deals with setting aside of judgments and, as is usual in rules of court, 16.05(2) provides that:

   ‘The court may vary or set aside its judgment or order after it has been entered if:

   (a) the order is made in the absence of a party.’

2. In situations like that it is always open to a party against whom a default judgment has been entered - that is, a judgment when that party is absent – to make application to that court for the judgment to be set aside and to be heard thereafter.  I have, in other cases, dealing with other jurisdictions, insisted upon that course being taken before any leave to appeal to this Court should be granted.

3. In those circumstances, I dismiss the application for extension of time for leave to appeal.  I order that the applicant pay the costs of the respondent.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             13 May 2005

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	4 May 2005
Date of Judgment:	4 May 2005