SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126 (7 February 2005)

Last Updated: 24 February 2005

FEDERAL COURT OF AUSTRALIA

SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126

Federal Magistrates Court Rules Rule 13.03A, 16.05(2)(a)



















SZDMD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1847 OF 2004



HELY J
7 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1847 OF 2004

BETWEEN:	SZDMD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	7 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time to file and serve a notice of appeal be dismissed with costs.

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 1847 OF 2004

BETWEEN:	SZDMD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	7 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant arrived in Australia on 3 March 2002. He was unsuccessful in his application for a protection visa. On 11 March 2003 the Refugee Review Tribunal (‘the RRT’) upheld the decision not to grant the applicant a protection visa.

2 In the course of its reasons for decision the RRT accepted that the applicant may fear persecution from relatives of a boy whom he stabbed in a fight, but the RRT was not satisfied that a Convention ground or grounds constituted the essential or significant reason or reasons for the persecution.

3 An application for judicial review came on for hearing before Federal Magistrate Scarlett on 18 November 2004. The applicant did not appear when the matter was called on for hearing. The Federal Magistrate stood the matter down for half an hour in case the applicant had been delayed by transport and caused some inquiries to be made to see if there had been any telephone call or faxed medical certificate or any other indication that the applicant had been legitimately delayed. When the applicant failed to appear after those inquiries had been made, the Federal Magistrate dismissed the application pursuant to Rule 13.03A of the Federal Magistrates Court Rules.

4 That decision was made on 18 November 2004 and if an appeal was to be lodged against that decision it was required to be filed by 9 December 2004. On 10 December 2004 the applicant filed an application for an extension of time to file and serve a notice of appeal. In support of his application for an extension of time the applicant has declared and affirmed that on 18 November 2004 he was waiting outside the wrong court in the Federal Magistrates Court building and it was for that reason that he was half an hour late in attending before the court.

5 A draft notice of appeal has been filed. It follows a familiar form and bears little, if any, relationship to the circumstances of the applicant’s case. What the applicant has to show is that Federal Magistrate Scarlett wrongly exercised his discretion to dismiss the proceedings by reason of the applicant’s non-attendance on the date fixed for hearing, whereas the draft notice of appeal does not attend to that question.

6 The applicant handed me a document styled ‘Applicant’s Written Argument’ which is some six pages in length. I will not attempt to summarise it here but will place it with the papers so that it forms part of the Court’s record. Much of that document bears little relationship to the circumstances of the present case except that in paragraph 23 the explanation for non-attendance at the Magistrates Court, which I earlier summarised, is repeated with some little elaboration.

7 Given the shortness of the delay I would grant an extension of time within which to appeal if I were satisfied that the appeal had any realistic prospect of success. However, the issue on any appeal would be whether the Federal Magistrate wrongly exercised his discretion to dismiss the appeal by reason of the applicant’s failure to attend. There is no realistic prospect of the applicant succeeding on an appeal from that decision, hence it would be futile to grant an extension of time within which to lodge an appeal and the application is therefore dismissed.

8 Rule 16.05(2)(a) of the Federal Magistrates Court Rules provides that the Federal Magistrates Court may vary or set aside any order after it has been entered if the order was made in the absence of a party. It may therefore be open to the applicant to apply to the Federal Magistrates Court to re-open the proceedings in that court.

9 For such an application to be successful the applicant would have to furnish both a reasonable excuse for his original non-attendance and demonstrate that there would be some purpose in re-opening the case and, of course, there would be no such purpose unless he had an arguable case. It would not be appropriate for me to express any opinion as to the applicant’s prospects of success should he make an application under the Federal Magistrates Court Rules Rule 16.05(2)(a) and I expressly refrain from expressing any opinion on that question.

10 In the result the application to this court is dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 23 February 2005

	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 February 2005
Date of Judgment:	7 February 2005