SZEZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 184 (2 March 2005)

Last Updated: 7 March 2005

FEDERAL COURT OF AUSTRALIA

SZEZG v Minister for Immigration & Multicultural & Indigenous
Affairs [2005] FCA 184

SZEZG v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

NSD 1863 of 2004

LINDGREN J
2 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1863 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZEZG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	2 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.

3. That for the purposes of Order 2, instead of taxed costs, the respondent be entitled to the sum of $600.
4. Orders 1, 2 and 3 not be entered until after 9 March 2005, and, if by that date the appellant applies by notice of motion supported by affidavit for an order seeking a setting aside of these orders, until further order of the Court.

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 1863 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZEZG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	2 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals against a decision of the Federal Magistrates Court of Australia (‘FMCA’) on 25 November 2004, by which the FMCA dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 22 June 2004 and handed down on 30 June 2004.

2 Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’) the Chief Justice determined it to be appropriate that the appellate jurisdiction of the Court in relation to the appeal be exercised by a single Judge.

3 The appellant’s notice of appeal which was filed on 14 December 2004 did not state proper grounds of appeal. Accordingly, at the first directions hearing on 9 February 2005, at which the appellant was represented by counsel, I ordered that the appellant file and serve an amended notice of appeal by yesterday, 1 March 2005, stating, with particulars, proper grounds of appeal, and that the matter to be stood over till today at 9.30 am for further directions. I also noted that it was my intention to dismiss the appeal today if the appellant had not complied with the order.

4 This morning Mr Rayment of counsel appears for the appellant but he has come into the matter only this morning, different counsel having appeared on the previous occasion.

5 Apparently an amended notice of appeal was emailed to the respondent’s solicitors yesterday. There is no copy of the document on the Court file but I have been handed up a copy in Court. The amended notice of appeal states the following grounds.

‘1. His Honour erred in failing to find that the Refugee Review Tribunal (‘RRT’) failed to take into account relevant considerations.

2. His Honour erred in failing to find that the RRT denied the applicant procedural fairness.

3. His Honour erred in failing to find that the decision of the RRT was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.

4. On account of his Honour’s failures in paragraphs 1 to 3, his Honour erred in failing to find that the decision of the RRT was affected by jurisdictional error and thereby in failing to grant the relief sought.’

6 There are no particulars of these grounds.

7 Mr Rayment says that the version of the order which he was given by counsel who had been briefed for the appellant did not include the words ‘with particulars’ and I accept what he says.

8 I have a discretion to dismiss the appeal: see s 25(2B)(bb) of the FCA Act. How should that discretion be exercised?

9 I have read the reasons for decision of the Tribunal and of the Federal Magistrate. The Federal Magistrate gave detailed reasons for dismissing the application before him and the reasons of the Tribunal are also detailed. There is no obvious ground of appeal available.

10 The appeal should be dismissed with costs, but in view of what Mr Rayment has said about the omission of the words ‘with particulars’, I will order that the orders not be entered for a period, and that the appellant have leave to apply for a setting aside of them.

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

Associate:

Dated: 4 March 2005

Counsel for the Appellant:	Mr D Rayment
Solicitor for the Respondent:	Ms B Rayment and Ms K Bryant of Sparke Helmore
Date of Hearing:	2 March 2005
Date of Judgment:	2 March 2005