SZCGQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 945

FEDERAL COURT OF AUSTRALIA

SZCGQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 945

MIGRATION – application for leave to appeal from Federal Magistrate – no issue of principle – application dismissed SZCGQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 952 OF 2005 CONTI J 7 JULY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 952 OF 2005

BETWEEN: SZCGQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 7 JULY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an enlargement of time within which to file and serve an application for leave to appeal and the application for leave to appeal be dismissed. 2. The applicant must pay the respondent's costs assessed at $500.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 952 OF 2005

BETWEEN: SZCGQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 7 JULY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

Background 1 The applicant seeks leave to appeal from a Federal Magistrate's refusal on 18 May 2005 to set aside an order dated 5 April 2005 summarily dismissing the applicant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 11 December 2003. The Tribunal found that it did not have jurisdiction to review the decision of a delegate of the Minister refusing the applicant a protection (Class XA) visa because the applicant filed his application for review outside of the prescribed time period. 2 The applicant applied for review of the Tribunal's decision in the Federal Magistrates Court on 22 December 2003. Since the applicant did not appear at his scheduled hearing on 5 April 2005, the Federal Magistrate summarily dismissed the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules. Rule 16.05 of the Rules gives a Federal Magistrate the discretion to set aside an order if it is made in the absence of a party. On 11 May 2005, the applicant applied to have the Federal Magistrate's summary dismissal set aside pursuant to that rule. It is from the Federal Magistrate's decision to refuse to exercise her discretion in the applicant's favour that he now seeks leave to appeal. 3 The Federal Magistrate's refusal to set aside her earlier order summarily dismissing the application for review did not finally determine the legal rights of the parties and was therefore interlocutory: Re Luck (2003) 203 ALR 1. As such, the applicant was required to seek leave to appeal from that judgment: Federal Court of Australia Act 1976 (Cth) s 24(1A). The applicant filed an application for leave to appeal from the Federal Magistrate's decision on 14 June 2005, which is outside the 21 day time limit prescribed by Federal Court Rules 1976 (Cth) O 52 r 5(2). The applicant must therefore also apply for an enlargement of time within which to file his application for leave to appeal. 4 Annexed to his application is a draft notice of appeal which contains the following purported grounds of appeal (read literally): 'I had moved to Melbourne on a temporary basis. Due to personal and financial circumstances. Because I met accident on 21 August 2004 in Sydney (Concord) after accident I am not able to concentrate my case. I had problem with my financial as well. Kindly reconsider my case.' The accident referred to above would appear to relate to a witness statement that the applicant annexes to his affidavit filed in support of his application. The affidavit itself reads simply as follows: