SZBXM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1087

FEDERAL COURT OF AUSTRALIA

SZBXM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1087 SZBXM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1276 OF 2005 GRAHAM J 8 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1276 OF 2005

BETWEEN: SZBXM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 8 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be joined as a party to the proceedings. 2. The Applicant have leave to appeal. 3. The costs of this application be costs in the appeal. 4. Any appeal be fixed for a date to be determined after the disposition of the appeal from the orders of Branson J in SZDMP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 883. 5. Liberty be granted to either party to apply on seven days' notice in writing to the other party. 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 NSD1276 OF 2005

BETWEEN: SZBXM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAHAM J

DATE: 8 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from an order made by Federal Magistrate Driver on 8 June 2005 in Chambers. It related to an application seeking a review of a decision of the Refugee Review Tribunal ("RRT") in respect of the Applicant known as SZBXM. That application came before Federal Magistrate Driver on 28 February 2005. 2 The Minister had sought an order that the proceedings be dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action. Federal Magistrate Driver dismissed that application on 28 February 2005 but made a number of other orders in respect of the RRT's decision. He also made an order for payment by the Applicant of the Minister's costs in the sum of $1750, which costs were to be paid within 90 days of 28 February 2005. As of today's date such costs have not been paid. 3 On 1 April 2005, an amended application for review was filed in the Federal Magistrates Court together with an affidavit of the Applicant affirmed 31 March 2005. On 3 June 2005 the solicitor for the Respondent, Laura Gazi, affirmed an affidavit which drew the court's attention to the fact that the costs had not been paid within the 90 day period. That affidavit contained a paragraph 6, reading: "6. In the circumstances, the respondent seeks that the matter be dismissed pursuant to order 6 of the orders of Federal Magistrate Driver made on 28 February 2005." 4 Order 6 of the orders made by Federal Magistrate Driver on 28 February 2005, provided: "6. If the applicant fails to comply with either the order for costs, the order for the further amended application or the order for an affidavit annexing the transcript of the Tribunal hearing within the required time, the Minister has leave to apply for an order in chambers dismissing the amended application without further reference to the applicant." 5 The affidavit of Laura Gazi to which I have referred was endorsed "Filed in Chambers" in the Federal Magistrates Court on 8 June 2005. On that date Federal Magistrate Driver made the order dismissing the application pursuant to rule 13.03 of the Federal Magistrates Court Rules and delivered reasons for judgment. 6 The application presently before the court seeks leave to appeal from the order of Federal Magistrate Driver made on 8 June 2005. The Minister contends that the order was properly made, but has drawn the court's attention to two decisions of Justice Branson in which her Honour has called into question the ability of a Federal Magistrate to make an order in Chambers such as that which was made in the absence of the Applicant on 8 June 2005. Those decisions are relevantly SZDMP v MIMIA [2005] FCA 883 and NBGI v MIMIA [2005] FCA 882. 7 In the circumstances, the Minister does not oppose a grant of leave to appeal from the decision of Federal Magistrate Driver of 8 June 2005. However, the Minister has indicated that an appeal has been brought to the Full Court from the judgment of Justice Branson in SZDMP v MIMIA [2005] FCA 883. The Minister submits that any appeal should be determined after the disposition of the appeal from the orders of Justice Branson. 8 The draft notice of appeal that has been lodged with the application for leave to appeal does not appear to raise any issues in respect of the order made on 8 June 2005. If the Applicant is to enjoy any success with an appeal, he should direct the notice of appeal, which he may file, to the correctness of the decision made by Federal Magistrate Driver on 8 June 2005.