SZEJZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1323

FEDERAL COURT OF AUSTRALIA

SZEJZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1323

MIGRATION – application for leave to appeal from Federal Magistrates Court – application refused – no matter of principle

SZEJZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1294 OF 2005

TAMBERLIN J
SYDNEY
1 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1294 OF 2005

BETWEEN:	SZEJZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

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	NSD 1294 OF 2005

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

JUDGE:	TAMBERLIN J
DATE:	1 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of Federal Magistrate Smith (“the Federal Magistrate”) delivered on 1 August 2005 refusing to set aside a previous default order made by the Federal Magistrate on 25 May 2005.

2. The Federal Magistrate made orders dismissing the interlocutory application and noted that the applicant had presented nothing to suggest that he might have an arguable case with any merit.  That is the case today before me.  There has been no suggestion or reference to any grounds on which the applicant would seek to base his case on the merits of the application for refugee status.

3. I have considered the reasons for decision of the Federal Magistrate and the reasoning of the Tribunal.

4. I note that on pp 99-100 of the green Court Book before the Federal Magistrate, a letter was sent to the applicant at Cornelia Street, Wiley Park, dated 24 July 1998, informing him that the Tribunal had looked at all the papers relating to the application but was not prepared to make a favourable decision on this information alone.  The letter referred to an opportunity being given to the applicant to come to a hearing before the Tribunal to give oral evidence in support of his application and stated that the hearing would take place on 25 August 1998 at 9:00 am.  The hearing did take place at that time but the applicant did not attend.

5. The Tribunal set out the law in its reasons for decision and noted that a letter had been sent to the applicant to the above effect.  It noted that the applicant had not contacted the Tribunal.  It appears from an envelope reproduced in the green Court Book at pp 101–102 that, on 2 September 1998, the Tribunal’s letter of 24 July 1998 was returned to the Tribunal marked “Return to Sender”.  It would appear that this letter was never received by the applicant.

6. The Tribunal member, having discussed the law, considered the circumstances very briefly and concluded it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

7. The applicant then made an application for review to the Federal Magistrates Court.  The Federal Magistrate made the orders to which I have referred which are the subject of this appeal.

8. Having read the reasons for judgment of the Federal Magistrate and the Tribunal, I am not persuaded that any error of law or principle has been established which would warrant the granting of leave to appeal in this case.  In particular, as noted earlier, the applicant has not advanced any grounds before me on which he could present a reasonable argument to the effect that there was an error of law.

9. Accordingly, I dismiss the application in the present case with costs.

10. I note that the respondent, the Minister of Immigration and Multicultural and Indigenous Affairs, seeks an order for costs in the fixed amount of $1,000.00.  However, in the circumstances, I am not persuaded that this order should be made and the matter should go to taxation if necessary.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:  Dated:            19 September 2005

The Applicant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 September 2005
Date of Judgment:	1 September 2005