FEDERAL COURT OF AUSTRALIA

SZDQZ v Minister for Immigration and Citizenship [2007] FCA 457

SZDQZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 234 OF 2007

MOORE J

27 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an adjournment be refused.

2.                  The application for leave to appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

3.                  The applicant pay the first respondent's costs fixed in the sum of $1000.

4.                  The name of the first respondent be amended to "Minister for Immigration and Citizenship".

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal filed on 15 February 2007 seeking leave to appeal against a judgment of a Federal Magistrate of 24 January 2007: see SZDQZ v Minister for Immigration & Anor [2007] FMCA 86.  The Federal Magistrate dismissed as incompetent an application to show cause why a remedy should not be granted in respect of the decision of the Refugee Review Tribunal of 18 November 2002, in which the Tribunal affirmed the decision of a delegate of the first respondent not to grant a protection visa.  The Federal Magistrate dismissed the application on the basis that the application was filed out of time and also outside the time in which that Court has a discretion to extend time: see s 477(1) and (2) of the Migration Act 1958 (Cth). 

2                     The applicant has not appeared today.  The applicant has written to the Court by letter dated 22 March 2007.  In that letter he says that he received a letter from the Court notifying him of the hearing "at a very late juncture" and, in effect, did not have time to prepare for or attend today’s hearing.  In other circumstances, it may have been appropriate to adjourn the matter.  However, this application for leave to appeal is against a judgment dismissing as incompetent proceedings commenced in the Federal Magistrates Court against a decision of the Tribunal dismissing an application for review.  It appears to me that the Federal Magistrate was correct in dismissing as incompetent the application to the Federal Magistrates Court.  Accordingly, to adjourn the proceedings would be an act of futility.  In the circumstances, I propose to refuse the adjournment and dismiss the application for non-appearance pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).  If I am mistaken about the lack of substance in the applicant’s application then the applicant can apply for the order I have just made to be set aside.  I order that the applicant pay the Minister’s costs fixed in the sum of $1000.

Associate:

Dated:         2 April 2007