FEDERAL COURT OF AUSTRALIA

SZDUA v Minister for Immigration & Citizenship and Refugee Review Tribunal [2008] FCA 83

SZDUA v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2369 OF 2007

REEVES J

31 JANUARY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant’s application for leave to appeal filed 3 December 2007 is dismissed.

2.                  The applicant pay the first respondent’s costs fixed in the sum of $1000.00.

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 the decision of Turner FM given on 8 November 2007.  In that decision the federal magistrate dismissed the notice of motion filed by the applicant which sought to vacate the orders made by Turner FM on 12 October 2007 and which sought to reinstate that matter for further hearing.

2                     Since this is an application for leave to appeal it must be filed within 21 days after the judgment was pronounced on 8 November 2007.  This application for leave was filed on 3 December 2007, which is approximately five days out of time.  When I asked the applicant for an explanation for that delay he said his friend who assists him was away in London and he could not get his assistance and he added that there was a public holiday in that period.

3                     As to the latter explanation, I am unaware of such a public holiday occurring in the relevant period, but even if there was one that would only explain one day of the five day delay.  As to the former explanation it appears to me to be somewhat weak when considered against the history of this matter.  I would therefore not be willing to exercise my discretion to grant an extension of time to file the application for leave to appeal. 

4                     Even if I were to grant the application, the applicant would need to persuade the court that the decision of Turner FM given on 8 November 2007 was plainly wrong since that decision is a discretionary decision.  I do not have the benefit of any reasons for Turner FM’s decision but I assume that the federal magistrate was not satisfied with the reason for non-attendance given by the applicant, that is, his non-attendance on 12 October 2007 when Turner FM made the ex pare order.

5                     In support of his notice of motion, the applicant filed an affidavit which gave the following explanation for his failure to attend on 12 October 2007.

“I arrived at the court building on yesterday at 1pm.  I was sent letter three times on three different occasions and on those occasions the court advised me three different schedules.  I was confused and missed the hearing.  I would like to appear before the court and seek leave to make an argument on my matter.

6                     Obviously Turner FM was not persuaded by that explanation and was not willing to reinstate the matter, nor set aside the order made on 12 October 2007 based upon it.

7                     On the material before me, even if I were to grant an extension of time to consider the application for leave to appeal, I consider that there is nothing before me that would allow me to interfere with the discretionary decision made by Turner FM on 8 November 2007.

8                     For all these reasons, I dismiss the applicant’s application for leave to appeal filed 3 December 2007.

9                     I order the applicant to pay the first respondent’s costs fixed in the sum of $1,000.00.

Associate:

Dated:         15 February 2008