Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZKAD v Minister for Immigration and Citizenship [2007] FCA 1304
SZKAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 755 OF 2007
RARES J
30 JULY 2007
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 755 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZKAD
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: RARES J
DATE OF ORDER: 30 JULY 2007
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The time for the applicant to file the application for leave to appeal is extended to 1 May 2007. 2. The application for leave to appeal is dismissed. 3. The applicant pay the first respondent's costs fixed in the sum of $2,700. 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 NSD 755 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZKAD
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: RARES J
DATE: 30 JULY 2007
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an application for leave to appeal from the decision of the Federal Magistrates Court in SZKAD v Minister for Immigration [2007] FMCA 599. There his Honour dismissed an application for constitutional writ relief on the basis that under r 44.12 of the Federal Magistrates Court Rules 2001 (Cth) the application did not raise an arguable case for the relief claimed. 2 Through some error in the postal system the application for leave was filed out of time but the applicant has provided an adequate explanation for what has occurred and I have granted her application for an extension of time for her to file the application for leave to appeal so that I can hear the application for leave on its merits. 3 In determining whether I should grant leave to appeal I must be satisfied the applicant for leave has established that the decision in question, here that of the Federal Magistrates Court, is attended with sufficient doubt to warrant the grant of leave and also that substantial injustice would result from the refusal of leave to appeal. Bienstein v Bienstein (2003) 195 ALR 225 at 231[29] per McHugh, Kirby and Callinan JJ. 4 An application for an order to show cause under r 44.12 of the Federal Magistrates Court Rules is an interlocutory proceeding. So much is provided by r 44.12(2), but in any event such a result follows because a dismissal of a proceeding without a determination on the merits is of its nature interlocutory, even though as a matter of practice it may have the effect of virtually determining rights although not as a matter of law: cp Re Luck (2003) 203 ALR 1 at 3-4 [6]-[9] per McHugh ACJ, Gummow and Heydon JJ.
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