NBDW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1526

FEDERAL COURT OF AUSTRALIA

NBDW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1526 NBDW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1566 OF 2004 STONE J 23 NOVEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1566 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NBDW

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 23 NOVEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs in the amount of $600. 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 N 1566 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NBDW

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 23 NOVEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application, filed on 27 October 2004, for leave to appeal from the interlocutory orders of a Federal Magistrate made on 10 September 2004. On that day, the Federal Magistrate summarily dismissed the applicant's application for judicial review of a decision of the Refugee Review Tribunal ('Tribunal') pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules and ordered that the applicant pay the respondent's costs of the proceedings fixed in the sum of $1,200. 2 Rule 13.03 is as follows: 'Rule 13.03 Default in taking required step etc (1) This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court. (2) Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order: (a) that the step be taken within a stated time; or (b) to end the proceeding or dismiss a response. (3) The Court may make the order sought or another order that it considers appropriate.' 3 The Federal Magistrate's decision is an interlocutory decision and for that reason leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal from a decision of a judge of this Court must be filed within 7 days from the date on which judgment is pronounced; O 52 r 10(2)(b) Federal Court Rules. However the time limit for filing an application for leave to appeal from the Federal Magistrates Court is specified in O 52 r 5 which provides that where an application for appeal to the Court requires the leave of the Court it must be filed within 21 days after the judgment is pronounced or such later date as is fixed by the court or judge who pronounced the decision. The application to this Court was filed 47 days after the date on which the Federal Magistrate pronounced judgment and is therefore out of time. The applicant has applied for an extension of time as well as for leave to appeal.