FEDERAL COURT OF AUSTRALIA

SZGIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 953

SZGIX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1534 OF 2005

ALLSOP J

25 JULY 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of appeal be treated as an application for leave to appeal.

2.                  The application for leave to appeal be dismissed.

3.                  The applicant pay the first respondent's costs of the application so treated.

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

REASONS FOR JUDGMENT

1                     In this matter on 30 August 2005 the party to whom I will refer as the applicant filed a notice of appeal in this Court in respect of orders made by the Federal Magistrate’s Court on 9 August 2005. Though styled a notice of appeal, the process should clearly be treated as an application for leave to appeal because the Federal Magistrate dealt with the matter in an interlocutory fashion. That this is clear can be seen from the circumstances surrounding the application in the Federal Magistrates Court.

2                     The application in the Federal Magistrates Court was filed in May 2005. It sought judicial review of a decision of the Refugee Review Tribunal in 2001. There were two alternative bases for the Magistrate to dismiss the application in the manner he did. The first was the fact that he concluded that the decision was a privative clause decision. He reached this conclusion not by an analysis undertaken by himself as to whether jurisdictional error did or did not exist, but rather by following and applying the decision of Selway J in which in 2004 it was concluded that substantively the same claims of the applicant did not give rise to jurisdictional error on the part of the Tribunal. On 31 May 2004 Selway J dismissed the applicant's application. The applicant sought to appeal out of time and seek an extension of time in that regard. On 10 September 2004 Finn J dismissed the application [2004] FCA 1165. Finn J said that the appeal would be plainly hopeless and therefore he refused to extend time. In those circumstances, the applicant simply began again in 2005 in the Federal Magistrates Court with this application, claiming that he was denied procedural fairness by the Tribunal in the manner identified in the application filed in 2005. As the learned Federal Magistrate indicated in his reasons, this was the substantive complaint before Selway J.

3                     The conclusion therefore that the Magistrate reached was that, because this was a privative clause decision, the application was incompetent and the Court had no jurisdiction. That conclusion that the Court had no jurisdiction was an interlocutory decision. The alternative way of putting the matter was that this was simply an abuse of process by re-running or attempting to re-run a case that had already been dealt with by the Federal Court. On this basis also the Magistrate dealt with the matter, or would have otherwise dealt with the matter. In those circumstances both grounds of the disposal of the matter were interlocutory. The applicant's submissions in this case that have been filed earlier this year do not direct themselves to these fundamental problems with his claim.

4                     The matter was set down for hearing today some months ago. That the applicant knows about today is evident by the fact that he called my chambers this morning and spoke to my associate. He asked for a telephone hearing because he was sick. He said that he felt ill and had been taking some Panadol. My associate on my direction indicated to the applicant that this was an unconventional and inadequate attitude to the importance of his hearing and that he would be expected to attend. He informed my associate that he would be attending.

5                     The matter was called on for hearing at 2.15. There was no appearance by the applicant. The acronym under which he is identified in the Court pursuant to section 91X of the Migration Act 1958 (Cth) was called three times outside. He has not appeared. For the above reasons, I see no basis presently in any complaint about the Magistrate's approach to the matter. The notice of appeal should be treated as an application for leave to appeal. The application for leave to appeal is dismissed and I order that the applicant pay the first respondent's costs of the application so treated.

Associate:

Dated: 11 August 2006