SZEUC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 594

FEDERAL COURT OF AUSTRALIA

SZEUC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 594

Migration Act 1958 (Cth)

SZEUC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 135, appeal dismissed

SZEUC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 279 OF 2005

GYLES J
2 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 279 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEUC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	2 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal is dismissed.

2.   The appellant is to pay the costs of the respondent fixed at $1,000.

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 279 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEUC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	2 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a purported appeal from an order of Federal Magistrate Lloyd-Jones of 8 February 2005 (SZEUC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 135) dismissing an application to that court pursuant to r 13.10 of the Federal Magistrates Court Rules 2001.  The prior history of the matter was that the appellant's application for a protection visa pursuant to the Migration Act 1958 (Cth) was refused by a delegate of the Minister on 15 December 2003. He thereafter applied to the Refugee Review Tribunal for a review of that decision. On 13 May 2004 the Tribunal affirmed the decision of the Minister's delegate not to grant the appellant a protection visa.

2. The history of the matter is set out in more detail in the judgment of the learned Federal Magistrate (SZEUC v Minister for Immigration [2005] FMCA 135). It is not necessary that I set that out in detail. The history of the matter has also been summarised in the outline of submissions filed and served on behalf of the respondent Minister.

3. When the matter came before the learned Federal Magistrate it was argued that the appeal ought to be dismissed pursuant to r 13.10 of the Federal Magistrates Court Rules 2001.  After consideration of the matter in some little detail the learned Federal Magistrate was persuaded to make that order.  Amongst the considerations which weighed with the learned Federal Magistrate was that the appellant had not ever provided any process which identified any proper basis for appeal.

4. When the matter came on before me for directions on 16 March last, I drew attention to the fact that as the order made would be classed as interlocutory, it would be necessary to seek leave to appeal.  I stood the matter over to today.  I granted leave to make an application for leave to appeal before me at that time.  No such application for leave has been filed.  The respondent takes the point that the appeal is incompetent, that having been flagged earlier and having been the subject of an outline of submissions filed some time ago.

5. The position was explained to the purported appellant on the last occasion.  When asked today what he wished to say about the matter, he said that he needed more time because of some personal problems he was having.  I indicated that I was not prepared to adjourn the proceeding further on that simple statement.  The matter has been fixed for some time.  It has a long history.  The purported appellant was then unable to add anything to what he had said earlier.  That is not surprising as he is unrepresented.

6. I should note that the respondent has not formally filed any motion seeking dismissal but, as the matter is before me today for hearing and as the appellant has simply failed to comply in any way with the provisions of the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules, the appropriate course in my opinion is to dismiss the appeal as incompetent (cf Lashansky v Bruvecchis [2005] FCAFC 64).

7. There is no reason to doubt the correctness of the decision of the learned Federal Magistrate, no error having been pointed to.  In those circumstances I dismiss the appeal.  I order that the appellant pay the costs of the respondent fixed at $1000. 

I certify that the preceding seven (7) 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 Appellant:	The Appellant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	2 May 2005
Date of Judgment:	2 May 2005