SZKOJ v Minister for Immigration and Citizenship

[2007] FCA 1631

FEDERAL COURT OF AUSTRALIA

SZKOJ v Minister for Immigration and Citizenship [2007] FCA 1631

SZKOJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1567 OF 2007

TRACEY J
30 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1567 OF 2007

BETWEEN:

SZKOJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	30 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Federal Magistrates’ Court be removed as a respondent to the application and in lieu thereof the Minister for Immigration and Citizenship and the Refugee Review Tribunal be substituted as respondents.

2.The application for leave to appeal be refused with costs fixed at $2,500.

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 1567 OF 2007

BETWEEN:

SZKOJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	30 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court an application by the applicant for leave to appeal from a decision of a Federal Magistrate. On 28 June 2007 the Federal Magistrate dismissed an application by the applicant for the reinstatement of an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”): see [2007] FMCA 1794. Leave is necessary because the judgment which it is sought to impugn is interlocutory and because the application for leave has been brought out of time. The application names the “Federal Magistrates Court Sydney” as a respondent. The proper respondents should be the Minister for Immigration and Citizenship and the Tribunal. I will order that they be substituted as respondents.

2. The application for judicial review was dismissed by the Federal Magistrates’ Court on 17 May 2007, pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 because the applicant failed to appear.  An application by the applicant for reinstatement was dismissed under the same rule on 31 May 2007 when the applicant again failed to appear at the hearing.  The applicant then made the further application for reinstatement which was dismissed by the Federal Magistrate on 28 June 2007.

3. The learned Federal Magistrate dismissed the application because he considered that the applicant had not provided a sufficient explanation for failing to attend the two previous hearings and because, in any event, there was no reasonable prospect of the applicant successfully prosecuting his judicial review application.  His Honour held that no useful purpose would be served by reinstating the proceeding because none of the proposed grounds relied on in the application for judicial review alleged jurisdictional error on the part of the Tribunal.

4. The applicant appeared in person this afternoon.  He had the assistance of an interpreter.

5. The applicant did not point to any error in the learned Magistrate’s decision.  He confirmed that he had failed to attend the two earlier hearings.  He sought to argue the merits of his case before the Tribunal by reference to written submissions that had been made on his behalf to the Tribunal.  He did not point to any legal errors on the part of the Tribunal.

6. I have carefully examined the Magistrate’s reasons.  They disclose no error of law.  They are not attended with sufficient doubt such as to warrant the decision being reconsidered by this Court.

7. The application should be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:       30 October 2007

Litigant in Person
Counsel for the Respondent:	Ms A Mansour
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 October 2007
Date of Judgment:	30 October 2007