SZAAD v Minister for Immigration and Citizenship [2007] FCA 653

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FEDERAL COURT OF AUSTRALIA

SZAAD v Minister for Immigration and Citizenship [2007] FCA 653

SZAAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1926 OF 2006

MOORE J

9 May 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1926 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAAD

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	9 may 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be added as second respondent.

2. The notice of motion of 16 March 2007 be dismissed.

3. The applicant pay the respondent's costs of the notice of motion.

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 1926 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZAAD

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:	MOORE J
DATE:	9 may 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 By notice of motion filed 16 March 2007, the applicant seeks to set aside orders made on 27 February 2007 dismissing an application for an extension of time in which to appeal against a judgment of the Federal Magistrate of 7 September 2006. The applicant did not appear on that occasion, although a medical certificate was faxed to the Court, the details provided in which are outlined in SZAAD v Minister for Immigration [2007] FCA 215 ("SZAAD") at [1]. I dismissed the application pursuant to s 25(2B(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) ("the Act") for the reasons which appear in SZAAD at [2]. The orders dated 27 February 2007 were entered on 7 March 2007. Pursuant to s 25(2B)(bc) of the Act,the Court has power to vary or set aside an order under s 25(2B)(bb) of the Act. The Court's power to set aside an order under s 25(2B)(bc) where the order has been entered was recently confirmed by the Full Court of the Federal Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61.

2 On 22 March 2007, orders were made that this motion be dealt with without an oral hearing pursuant to Order 52, rule 2AB of the Federal Court Rules. The parties were invited to file summaries of argument but have not done so: see Order 52, rule 2AB(2). The applicant has sworn an affidavit in support of the motion. The applicant states in the affidavit that he was not able to attend the hearing "due to sickness" and that he was unable to telephone the Court to inform it of his inability to attend due to ill health because he does not have a mobile phone and there was no one else who could telephone the Court on his behalf. He requests "another chance to represent myself and present my case".

3 The motion should be dismissed. Any order to set aside the earlier orders would be futile. The decision of the Federal Magistrate was clearly correct, given that the applicant sought to challenge the decision of the delegate of the first respondent and the background of extensive litigation against which the Federal Magistrate's decision was made: see SZAAD at [2]. The applicant is to pay the first respondent's costs of the motion.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 9 May 2007


Solicitor for the Respondent:	Clayton Utz

Date of Judgment:	9 May 2007

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