SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834

FEDERAL COURT OF AUSTRALIA

SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 SZBBL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N422 of 2004 TAMBERLIN J SYDNEY 24 JUNE 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N422 OF 2004

BETWEEN: SZBBL

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 24 JUNE 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application for leave to appeal from the decision of the learned Magistrate 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 N422 OF 2004

BETWEEN: SZBBL

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 24 JUNE 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of a Federal Magistrate that was delivered on 15 March 2004. Although there was initially an objection to the competency of the appeal on the basis that the applicant had not complied with the time limits within which to file a notice for an extension, this has not been pursued. The remaining issue before the Court is whether leave to appeal should be granted from the interlocutory decision of the learned Magistrate. 2 When the application for review came before the Magistrate, it was summarily dismissed on the ground that no reasonable cause of action was disclosed in support of the application. The Magistrate addressed this question in paragraph [8] of his reasons for decision. It is because this decision for summary dismissal was interlocutory that the question arises as to whether leave to appeal should be granted. This, in turn, requires consideration of two aspects: first, the strength of the applicant's case, which is to say, whether the applicant might have an arguable case, and secondly, whether an injustice might be occasioned if the appeal were not to be allowed, such that the interest of justice might be served by allowing the appeal. 3 The applicant raises three matters on this application for leave to appeal from the Magistrate's finding that no arguable case could be made out and that the proceedings should therefore be dismissed summarily.