SZEGY v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 516

FEDERAL COURT OF AUSTRALIA

SZEGY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 516

SZEGY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 196 OF 2005

MADGWICK J
26 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 196 OF 2005

BETWEEN:	SZEGY 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 be dismissed, with costs.

2.The costs be assessed in the amount of $600.00.

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	N 196 OF 2005

BETWEEN:	SZEGY 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. The applicant seeks leave to appeal from an interlocutory judgment of Federal Magistrate Nicholls given on 4 February 2005. His Honour dismissed an application for a review of an adverse decision of the Refugee Review Tribunal (‘the Tribunal’) pursuant to rule 13.O3(2)(b) of the Federal Magistrates Court Rules 2001 by reason of the applicant’s failure to comply with directions made by the Court. The decision of the Tribunal was given on 24 June 2004 and handed down on 20 July 2004.

2. The applicant’s application to the Federal Magistrates Court simply claimed that the Tribunal had made an error of law:

   ‘… involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision.’

   It gave as purported particulars the following:

   ‘The Tribunal misconstrued or misapplied the law concerning its determination.’

3. When the matter was before the lower Court for directions on 13 September 2004 the applicant was present and assisted by an interpreter.  Consent orders were made which included the following:

   ‘2.The applicant file and serve an amended application giving complete particulars of each ground of review relied upon together with any affidavit material to be relied upon by 8 November 2004.

   3.If an amended application is not filed in accordance with Order 2 above, the respondent may request that the Registry list the matter in a non-compliance list before the Federal Magistrate with the intention of applying for summary dismissal due to non-compliance with a direction of the Court.  Once listed the respondent to advise the applicant of the time, date and place of that listing.’

4. No amended application was filed by 8 November 2004, or at all.  There is still no proposed amended application before the Court.

5. Before the learned Federal Magistrate, in response to the respondent’s application for a dismissal of his application, the applicant proceeded, according to the learned Federal Magistrate, as follows:

   ‘At first in response to a request for an explanation for the failure to comply the applicant said: “I don’t know”.  When pressed he said that he was unable to find a good solicitor.  The applicant advised he had accessed the Court’s Legal Advice Scheme and had spoken to a panel lawyer but had felt that “they are not suitable for me”.  By “suitable” he said he meant a solicitor who could help him “in the right way”.  He could offer no explanation as to why he did not find any other lawyer.’

6. The learned Federal Magistrate dismissed his application to the Court because the applicant –

   ‘… had ample opportunity to pursue the amended application in a proper manner and obtain legal advice … .       Nor was the applicant able to offer anything to the Court to cause me to give him more time.  At best his complaint was that good solicitors cost a lot of money and he could not afford it.’

7. In his application for leave to appeal the applicant has filed an affidavit which claims he did his best ‘to engage a good solicitor to prepare an amended application’, as the directions had contemplated, but he needed more time to put himself in funds to do this:

   ‘Just when I was about to engage a fair solicitor, my time ran out and this solicitor needed time to act for me properly.’

8. He also says:

   ‘I thought that the hearing on 4 February 2005 was simply another directions hearing.  I thought I always could submit further documents till  the scheduled hearing.’

9. The grounds of the intended appeal from the judgment of the lower court are:

   ‘2.The matter was verbally dismissed despite the fact that I needed more time to engage a fair solicitor to prepare and to file an amended application.

   3.I was seeking legal advice and the solicitor needed more time to prepare as I only engaged him recently.’

10. The applicant appears today, again, unrepresented.  I can detect no error of fact nor any error of principle in the learned Federal Magistrate’s decision.

11. In response to my efforts to understand what might be the point to be agitated in relation to the Tribunal’s decision, the applicant did not suggest anything that, as it would seem to me, could sound in jurisdictional error.  Hence, it would be futile to grant the leave sought. 

12. For these reasons, leave is not granted.  The application for leave will be dismissed with costs, which I assess in the sum of $600.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             9  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