SZCAW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 726

FEDERAL COURT OF AUSTRALIA

SZCAW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 726

SZCAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD651 OF 2005 LINDGREN J 25 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD651 OF 2005

BETWEEN: SZCAW

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 25 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs of the application. 3. As to the whole of the costs specified in order (2), instead of taxed costs, the respondent shall be entitled to a sum of $700. 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 NSD651 OF 2005

BETWEEN: SZCAW

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 25 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By an application filed on 27 April 2005, the applicant applies for leave to appeal from an interlocutory judgment of the Federal Magistrates Court of Australia ('FMCA') given on 11 April 2005 by Driver FM. No formal reasons for judgment were delivered but his Honour gave reasons which are recorded in the transcript, of which I have a copy. 2 The applicant filed in the FMCA on 1 December 2003 an application for review of a decision of the Refugee Review Tribunal. The Tribunal's decision was made on 30 September 2003 and handed down on 23 October 2003. The Tribunal affirmed a decision not to grant to the applicant a protection visa. 3 On 22 April 2004, a Registrar made in the FMCA proceeding an order that the applicant file an application with particulars of the grounds of review by 28 June 2004. On 6 December 2004, Driver FM granted the applicant leave to file an amended application by 20 December 2004, provided it propounded at least one jurisdictional error (with particulars), and also granted to the respondent Minister leave to apply for an order in chambers dismissing the application for review if the order just mentioned was not complied with, on the ground that no reasonable cause of action was disclosed in the existing application before the FMCA. 4 The applicant failed to comply with his Honour's order. On 23 December 2004 his Honour made an order in chambers dismissing the application pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001. In fact the applicant had filed a document entitled 'Additional Information' on 17 December 2004, but Driver FM took the view that that document did not satisfy the terms of his order. 5 On 6 January 2005, the applicant filed in the FMCA an application seeking to have the order of dismissal made on 23 December 2004 set aside. In his affidavit accompanying that application, the applicant apparently relied on the ground that the order of dismissal had been made in his absence and that he had not been notified of the hearing. It was true that he had not been notified of any hearing. Nor had the respondent. There was no hearing. The order was made in chambers as had been foreshadowed on 6 December 2004. 6 The application filed on 6 January 2005 came on for hearing before Driver FM on 11 April 2005, the question before his Honour being whether he should set aside his order of dismissal made on 23 December 2004. His Honour questioned whether he had jurisdiction to hear and determine the application, suggesting that the proper course might have been for the applicant to apply to this Court for leave to appeal. However, he was, in any event, not satisfied that the applicant had advanced any reason as to why the order of dismissal should be set aside. 7 His Honour noted that the applicant had been given several opportunities to file an amended application stating proper grounds of review with particulars and had failed to do so. He further noted that at the directions hearing on 6 December 2004 the applicant had been put on notice that if he did not file an amended application, Driver FM would, on the respondent's application, dismiss the application without a further hearing. Accordingly, on 11 April 2005 Driver FM dismissed the applicant's application for an order setting aside the order of dismissal. 8 The application for leave to appeal being called on today, the applicant has not appeared and I have heard his application in his absence. In his application for leave to appeal, he stated his grounds as follows: