FEDERAL COURT OF AUSTRALIA

SZCET v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1516

SZCET v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1322 OF 2004

STONE J

22 NOVEMBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application for leave to appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from orders made by a Federal Magistrate.  The Federal Magistrate dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001.  Rule 13.03 is as follows:

‘Rule 13.03 Default in taking required step etc

(1)               This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court.

(2)               Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order:

(a)               that the step be taken within a stated time; or

(b)               to end the proceeding or dismiss a response.

(3)               The Court may make the order sought or another order that it considers appropriate.’

2                     The Tribunal decision that was the subject of the application to the Federal Magistrates Court was made on 31 October 2003.  The application for review of this decision was filed on 16 December 2003.  A directions hearing in respect of that application was held on 19 May 2004 at which time the registrar, with the consent of the parties, made orders including:

‘1. The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely by 30 June 2004.

2. If an amended application is not filed in accordance with Order 1 above, the Respondent may request that the registry list the matter in a noncompliance list before the Federal Magistrate with the intention of applying for summary dismissal due to non compliance with a direction of the Court.  The Respondent is to advise the Applicant of the time, date and place of any such listing.’ 

3                     It is not in contention that the applicant did not comply with order 1 above.  Accordingly, the respondent had the matter listed on the non-compliance list and applied for summary dismissal of the application.  On 23 August 2004, the Federal Magistrate dismissed the application pursuant to Rule 13.03(2)(b).

4                     The Federal Magistrate’s decision did not finally resolve the issue between the parties and is thus an interlocutory decision.  Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) specifies that leave to appeal is required from any interlocutory judgment, including an interlocutory judgment of the Federal Magistrates Court.  On 9 September 2004 the applicant filed an application to this Court using Federal Court Form 54A.  This is the form for an extension of time to file and serve a notice of appeal.  The heading of the form was amended by hand so that the application is also for leave to appeal from an interlocutory decision. 

5                     Although the applicant has sought an extension of time, in my view this is not required as the application was made within the time provided in the Federal Court Rules.  The respondent conceded this point in a letter sent to the Court before the hearing.  The confusion may have arisen from the fact that O 52 r 10(2)(b) of the Federal Court Rules provides that an application for leave to appeal from an interlocutory judgment of the Court must be filed within 7 days from the date on which judgment is pronounced.  That rule, however, applies to applications in respect of interlocutory judgments of the Federal Court not the Federal Magistrates Court.  Order 52 Rule 5 provides that where an application for appeal to the Court requires the leave of the Court it must be filed within 21 days after the judgment is pronounced or such later date as is fixed by the court or judge who pronounced the decision.  The application in this proceeding being filed on 9 September 2004 was within the time provided by O 52 r 5.

6                     The application filed in the Federal Magistrates Court did not specify any ground of review.  Although the applicant did not comply with the order to file an amended application on 29 June 2004 he faxed a submission to the Federal Magistrates Court making a number of criticisms of the Tribunal’s decision including that the Tribunal had been biased against him and did not consider the information and evidence that he had provided.

7                     As far as I can see the essence of those submissions is that the Tribunal did not accept his claims.  The Tribunal had invited the applicant to attend a hearing and make oral submissions but that invitation was not accepted.  Quite properly the Tribunal proceeded to make its decision on the material before it.   The Tribunal identified two main problems with the claims made by the applicant.  First, the claims were said to be ‘remarkably similar’ to the claims made by another applicant who had used the same migration advisor and secondly, the Tribunal did not find the allegations made by the applicant credible.  The Tribunal noted that the application was lacking in detail and the applicant had not provided any supporting information of any kind for his claims.  The Tribunal was not satisfied that the applicant did have a well-founded fear of persecution.

8                     At the hearing today I invited the applicant to explain his criticisms of the Tribunal.  Unfortunately he was not able to make any coherent claim.  He referred to the fact that on 19 May 2004 when the consent orders referred to in [2] were made he was told that the matter would be heard on 21 January 2005 and complained that in fact it was heard on 23 August 2004.  This complaint ignores the fact the matter was listed in the non-compliance list on 23 August because the applicant did not comply with the orders made on 19 May.  In any event the applicant admitted that he was present at the hearing.  The only other submissions made by the applicant were a reiteration of the submissions sent to the Federal Magistrates Court (see [6] above).

9                     Leave to appeal from an interlocutory decision will not be given if the appeal has no prospects of success.  I am satisfied that any appeal made by the applicant would be doomed to failure and for that reason I refuse leave to appeal with costs.

Associate:        

Dated:              22 November 2004