SZKCC v Minister for Immigration and Citizenship

[2007] FCA 1363

FEDERAL COURT OF AUSTRALIA

SZKCC v Minister for Immigration and Citizenship [2007] FCA 1363

Federal Magistrates Court Rules, r 13.03A(c), r 16.05(2)(a)

SZKCC v Minister for Immigration & Anor [2007] FMCA 881 upheld

SZKCC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1034 OF 2007

GYLES J
17 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1034 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	17 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant is to pay the first respondent’s costs of the application assessed 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 1034 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE:	17 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from an order of the Federal Magistrates Court dismissing an application to it pursuant to r 13.03A(c) of the Federal Magistrates Court Rules, following the applicant’s failure to attend the hearing (SZKCC v Minister for Immigration & Anor [2007] FMCA 881).

2. The applicant was initially represented in the Federal Magistrates Court by a solicitor who sought leave to withdraw from the proceedings after forwarding a copy of a notice of ceasing to act to the Court. Leave to withdraw was granted. The normal and proper course to reinstate an application for judicial review in the Federal Magistrates Court is to file an application seeking to set aside the orders made in the absence of the party pursuant to r 16.05(2)(a) of the Federal Magistrates Court Rules.

3. There is no basis shown for doubting the power of the learned Federal Magistrate to make the order that he did and there does not appear to be any arguable case available that there was an appealable error in what was done.  The applicant says that he has been let down by his former solicitor.  That may be so, I do not know, but if he has a complaint in that respect, he should direct it to the Law Society of New South Wales.

4. I am advised that there is no time limit for making an application to set aside the orders made in the absence of the applicant.  That is his proper recourse in view of what has happened.  He would have to satisfy the Federal Magistrates Court that there was a proper reason for his non-attendance on 18 May 2007 and also perhaps disclose some basis for his case.  That, of course, is a matter for the Federal Magistrates Court, not me.

5. Under the circumstances, I have no alternative but to dismiss the application and order that the applicant pay the costs of the first respondent assessed at $1000. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:        29 August 2007

The Applicant appeared in person
Solicitor for the First Respondent:	Mr R White of Sparke Helmore
Date of Hearing:	17 August 2007
Date of Judgment:	17 August 2007