Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZCUQ v Minister for Immigration & Citizenship [2007] FCA 1187
SZCUQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 505 OF 2007
EDMONDS J
10 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 505 OF 2007
BETWEEN: SZCUQ
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: EDMONDS J
DATE OF ORDER: 10 AUGUST 2007
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's 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 505 OF 2007
BETWEEN: SZCUQ
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: EDMONDS J
DATE: 10 AUGUST 2007
PLACE: SYDNEY
REASONS FOR JUDGMENT
Introduction 1 The is an application for leave to appeal from the Federal Magistrates Court (Cameron FM) dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') affirming a decision of a delegate of the first respondent ('the Minister') not to grant the applicant a protection visa. The applicant had sought review of an earlier decision of the Tribunal and on 5 May 2006 the Federal Magistrates Court ordered, by consent, that the decision be quashed and the matter be remitted to the Tribunal to be determined according to law. It was from the second Tribunal decision that the application for judicial review came before Cameron FM. His Honour ordered, by consent, that a 'show cause' hearing take place in respect of the proceedings pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 ('the Rules'). 2 His Honour dismissed the application pursuant to para 44.12(1)(a) of the Rules, namely, that he was not satisfied that the application raised an arguable case for the relief claimed. His Honour concluded (at [29]): 'In this case it is clear that the applicant's action is certain to fail because his claim for judicial review on the basis of jurisdictional error is groundless.' 3 A dismissal under para 44.12(1)(a) is interlocutory (para 44.12(2)) and an appeal to this Court may only be brought with the leave of the Court or a judge: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant erroneously filed a notice of appeal rather than an application for leave to appeal. However, all parties proceeded on the basis that leave was required and that the notice of appeal should be treated as an application for leave to appeal.
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