SZCEC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 361

SZCEC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 361

Although the delay in filing was not extensive and the Court would have been prepared to extend time, the proposed appeal had no prospects of success. The applicant had not complied with the Federal Magistrate's order of 11 October 2004 requiring particulars, no contrary argument was available, and it was clearly open to the Federal Magistrate to dismiss the judicial review application under Rule 13.03. Time to apply for leave to appeal was therefore not enlarged.

Jurisdiction
Australia
Judgment Date
08 April 2005
Procedural Posture
Migration Application for Enlargement of Time in Which to Seek Leave to Appeal / Application in the Federal Court From an Order of a Federal Magistrate Dismissing an Application for Judicial Review of a Refugee Review Tribunal Decision
Outcome
Application for enlargement of time in which to seek leave to appeal dismissed; applicant ordered to pay the respondent's costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'leave to Appeal' 'enlargement of Time' 'non Compliance With Court Orders' 'dismissal Under Rule 13.03']
['migration' 'administrative Law' 'civil Procedure'] ['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'leave to Appeal' 'enlargement of Time' 'non Compliance With Court Orders' 'dismissal Under Rule 13.03']

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Procedural Posture

Migration Application for Enlargement of Time in Which to Seek Leave to Appeal / Application in the Federal Court From an Order of a Federal Magistrate Dismissing an Application for Judicial Review of a Refugee Review Tribunal Decision

Legal Issues

  1. 1 ['Whether time should be enlarged for the applicant to seek leave to appeal when the application was filed seven days out of time.' "Whether the proposed appeal from the Federal Magistrate's dismissal under Rule 13.03 of the Federal Magistrates Court Rules 2001 had prospects of success." "Whether the Federal Magistrate's dismissal of the judicial review application in chambers after non-compliance with orders was open." "Whether refusal of leave would cause substantial injustice in circumstances where the draft notice of appeal did not identify a particular error and the Tribunal's reasons did not disclose jurisdictional error."]

Ratio Decidendi

Although the delay in filing was not extensive and the Court would have been prepared to extend time, the proposed appeal had no prospects of success. The applicant had not complied with the Federal Magistrate's order of 11 October 2004 requiring particulars, no contrary argument was available, and it was clearly open to the Federal Magistrate to dismiss the judicial review application under Rule 13.03. Time to apply for leave to appeal was therefore not enlarged.

Court Disposition

Application for enlargement of time in which to seek leave to appeal dismissed; applicant ordered to pay the respondent's costs.

Orders

  • ['The application for the enlargement of time in which to seek leave to appeal be dismissed.' "The applicant pay the respondent's costs."]