FEDERAL COURT OF AUSTRALIA

SZCSW v  Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 518

SZCSW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 245 of 2005

MADGWICK J

26 APRIL 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the respondent’s costs assessed in the amount of $600.00.

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

REASONS FOR JUDGMENT

Madgwick J:

1                     The applicant seeks leave to appeal against orders made by Federal Magistrate Nicholls on 1 February 2005.  His Honour dismissed an application made by the applicant to the Federal Magistrates Court for judicial review of an adverse decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 16 January 2004 for non-compliance with directions of the Court given on 17 June 2004.

2                     On that date, by consent (the applicant being assisted by an interpreter), the following directions were made:

‘1.        The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon …and any evidence upon which the applicant proposes to rely by 28 September 2004.

2.         If an amended application is not filed in accordance with Order 1 above, the respondent may request the registry list the matter in a non-compliance list before the Federal Magistrate with the intention of applying for summary dismissal due to non-compliance with a direction of the Court … .’

3                     The matter was listed for a further call-over on 1 February 2005, by which time there was still no amended application filed and the matter was referred to his Honour as the duty Federal Magistrate.

4                     The matters considered by the learned Federal Magistrate in the exercise of his discretion included, in addition to the foregoing, that:  the applicant had had opportunity to access legal advice;  the application to the Court put forward no basis or grounds for judicial review;  the applicant had not attended the hearing before the Tribunal, nor had he provided any explanation for his failure to attend;  no amended application had been filed by 1 February 2005;  no grounds for judicial review had been put forward;  the applicant provided no explanation for his failure to take relevant and appropriate and required steps to pursue his claim;  and nothing was put forward to show any utility in being given more time to comply with the Court’s order.  His Honour remarked that the applicant had been quite markedly inactive in pursuing his claim.  As the solicitor for the Minister suggests, these are all relevant matters to the exercise of discretion under Rule 13.03(2)(b) of the Federal Magistrates Court Rules.

5                     I am not able to detect any error of law or principle or fact in the judgment of the learned Federal Magistrate.  Accordingly, it has not been shown that his Honour erred in the exercise of his discretion.  In any case, no arguable ground of appeal has been raised and it appears that the judgment below is not attended by sufficient doubt to warrant allowing an appeal against the interlocutory judgment to proceed.

6                     Further, there is nothing on the face of the decision of the Tribunal to suggest that any substantial injustice would be caused to the applicant by a refusal of leave.  The applicant has simply proceeded here to recite his concerns about the alleged persecution of Falun Gong practitioners, of which he says he is one, in China.  Such recitations are simply beside the point of any question presently concerning me. 

7                     It follows that the application for leave to appeal should be dismissed, which it is, and the applicant is to pay the respondent’s costs, assessed in the sum of $600.00.

Associate:

Dated:              4  May 2005