SZBXX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 823

FEDERAL COURT OF AUSTRALIA

SZBXX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 823

PRACTICE AND PROCEDURE– application for extension of time in which to file and serve an application for leave to appeal and for leave to appeal a self executing order of the Federal Magistrates Court – query as to basis for self executing order – unsatisfactory explanation for long delay – application should be made to Federal Magistrates Court to set aside order – application dismissed. Federal Magistrates Court Rules, r 13.03 SZBXX AND SZBXY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 477 OF 2005 GYLES J 8 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 477 OF 2005

BETWEEN: SZBXX

FIRST APPLICANT

SZBXY

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 8 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicants' application for extension of time in which to file and serve an application for leave to appeal and for leave to appeal be dismissed.

2. No order is made as to 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 NSD 477 OF 2005

BETWEEN: SZBXX

FIRST APPLICANT

SZBXY

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 8 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This application requires an extension of time for an application for leave to appeal and then seeks leave to appeal. The judgment in question was the result of a self-executing order made by a Federal Magistrate. The order was made on 25 March 2004. 2 The respondent Minister had filed a motion seeking to have the proceeding dismissed on the basis that no arguable cause of action was disclosed. There had been no directions hearing at that stage. The time for the hearing of the motion was changed on various occasions. There was evidence before the learned Federal Magistrate that there had been communication with the applicants regarding these events, albeit by post. The transcript reveals that apparently there had been some inchoate or unsuccessful arrangements to have the matter heard by telephone, the applicants being in Griffith, New South Wales. 3 The learned Federal Magistrate elected to proceed, did not strike out the matter for non-appearance, and proceeded to hear the motion of the Minister on the merits and dismissed it. However, orders were made on that occasion as follows: '… 2. The applicants are to file and serve on the respondent an amended application, setting out each ground of review relied upon and particulars of any facts or circumstances relied upon in support of each ground of review no later than 28 days after the applicants receive advice under the Minister's pilot advice scheme, should they choose to participate in it, or in any event, no later than 30 November 2004.