SZIBD v Minister for Immigration & Citizenship [2008] FCA 429

SZIBD v Minister for Immigration & Citizenship [2008] FCA 429

An application for leave to appeal a Federal Magistrate's dismissal of an application due to non-appearance is misconceived and inappropriate where no prior application has been made to set aside the order under rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001. Proper procedure dictates that the applicant must first apply to set aside the dismissal for non-attendance, where reasons can be tested by evidence at first instance.

Parties
Appellant: SZIBD; First Respondent: Minister for Immigration & Citizenship; Second Respondent: Refugee Review Tribunal
Jurisdiction
Australia
Judgment Date
20 March 2008
Procedural Posture
Appeal / Application for Leave to Appeal From Federal Magistrates Court
Outcome
Application for leave to appeal dismissed
Legal Topics
Leave to Appeal, Dismissal for Non Appearance, Procedure for Setting Aside Orders
Migration Law Administrative Law Appellate Procedure Leave to Appeal Dismissal for Non Appearance Procedure for Setting Aside Orders

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Parties

SZIBD

Appellant

Minister for Immigration & Citizenship

First Respondent

Refugee Review Tribunal

Second Respondent

Procedural Posture

Appeal / Application for Leave to Appeal From Federal Magistrates Court

Legal Issues

  1. 1 Whether the Federal Court can entertain an appeal from a dismissal for non-appearance without prior application to set aside the dismissal
  2. 2 Proper procedure for challenging an order dismissing for non-appearance

Ratio Decidendi

An application for leave to appeal a Federal Magistrate's dismissal of an application due to non-appearance is misconceived and inappropriate where no prior application has been made to set aside the order under rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001. Proper procedure dictates that the applicant must first apply to set aside the dismissal for non-attendance, where reasons can be tested by evidence at first instance.

Court Disposition

Application for leave to appeal dismissed

Orders

  • The application for leave to appeal is dismissed.
  • The applicant pay the first respondent's costs fixed in the sum of $1200.