Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZARC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 931 SZARC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N375 of 2004
MADGWICK J 28 JUNE 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N375 of 2004
BETWEEN: SZARC
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: MADGWICK J
DATE OF ORDER: 28 JUNE 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The respondent's objection to the competence of the appeal is upheld. 2. The applicant's proceedings in this Court will be dismissed. 3. The applicant is to pay the costs of the respondent assessed in the sum of $3,000. 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 N375 OF 2004
BETWEEN: SZARC
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: MADGWICK J
DATE: 28 JUNE 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT HIS HONOUR: 1 On 19 March 2004, the would-be appellant filed a purported Notice of Appeal from a judgment of the Federal Magistrates Court given by Barnes FM given on 1 March 2004. The applicant was unsuccessful in his claims to be a refugee and a decision adverse to him was given by the Refugee Review Tribunal ('the Tribunal') on 7 January 2003. The applicant did not seek review by the Federal Magistrates Court until 26 May 2003. The matter before the court at first instance was whether a notice of objection to competency of the appeal filed by the respondent Minister should be upheld. The Minister's point was that the application for review had been made more than 28 days after notification of the Tribunal decision. 2 Section 477(1A) of the Migration Act (1958) (Cth) ('the Act') provided at the relevant time that an application to the Federal Magistrates Court under s 483A for a constitutional writ or an injunction or declaration in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court was not excluded by s 476, must be made within 28 days of the notification of the decision. The decision of the Tribunal would be caught by s 477(1A), subject to any constitutional consideration.
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