SZFVM v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1047

FEDERAL COURT OF AUSTRALIA

SZFVM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1047

MIGRATION – application for leave to appeal from Federal Magistrates Court refused

SZFVM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1117 OF 2005

GYLES J
27 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1117 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFVM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	27 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs fixed at $800.

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 1117 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	GYLES J
DATE:	27 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of the Federal Magistrates Court of Australia which dismissed an application by this applicant on two bases.  The first was that the proceedings were an abuse of the process of that court, and, alternatively, that the application was barred by estoppel.

2. The history of the matter is set out in some detail in the reasons of the learned Federal Magistrate recorded as SZFVM v The Minister for Immigration [2005] FMCA 850 and I need not repeat that history.

3. The application for leave to appeal simply says, in effect, that the applicant is not satisfied with the decision.  A draft notice of appeal is enclosed, which I need not set out, but is in a form which has become familiar to me from many cases and bears no relationship to the judgment under appeal and does not isolate any arguable ground of appeal.  The unrepresented applicant is, not surprisingly, unable to add anything of substance in his oral presentation today apart from expressing a grievance about the decision of the Tribunal.

4. In order to have leave granted from a decision of this kind it is necessary to present at least an arguable ground of appeal from the decision of the learned Federal Magistrate not from the decision of the Tribunal.  This Court in this kind of application has no direct role to play in relation to the decision of the Tribunal.

5. Notwithstanding the failure of the applicant to isolate any ground of appeal, I have read the learned Federal Magistrate's decision and it seems to me that, far from there being doubt about the correctness of that decision it is, so far as I can see, plainly correct and recites a set of facts which can only be described as an appalling abuse of process.

6. The application is dismissed.  I order that the applicant pay the respondent's costs fixed at $800.  I am satisfied that is an amount which is reasonable under the circumstances and would be less than the amount that would be involved in undertaking an assessment or a taxation of costs together with the costs which might be assessed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             29 July 2005

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	S Zarucki of Clayton Utz
Date of Hearing:	27 July 2005
Date of Judgment:	27 July 2005