BZAC v Refugee Review Tribunal

FEDERAL COURT OF AUSTRALIA

BZAC v Refugee Review Tribunal [2005] FCA 675

Federal Court of Australia Act (1976) ss 23, 24(1AAA), 25(2), 25(2B)

NBDW v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 24 cited
Westsub Discounts v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 cited
Hunter v Chief Constable of West Midlands Police [1982] AC 529 cited
Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia Limited (prov liq apptd) (1991) 108 ALR 263 cited
Hunter v Leahy [1999] FCA 1075 cited
Jackson v Sterling Industries Limited (1987) 162 CLR 612 cited
NBDW v MIMIA [2005] FCA 63 dismissed
Marchant v GB Radio [2002] FCA 465 cited

BZAC OF 2004 V REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No QUD 122 of 2005

SPENDER J
25 MAY 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 122 OF 2005

BETWEEN:

BZAC OF 2004
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

25 MAY 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

2.The applicant pay the costs of the respondent, of and incidental to the appeal, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	qud 122 OF 2005

BETWEEN:

BZAC OF 2004
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	SPENDER J
DATE:	25 MAY 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This purports to be an appeal from a decision of Kiefel J on 26 April 2005 whereby her Honour, exercising the appellate jurisdiction of the court, dismissed the appellant’s appeal from a decision of Federal Magistrate Baumann given on 20 January 2005.  Federal Magistrate Baumann dismissed the appellant’s application for review of the Refugee Review Tribunal’s decision dated 3 July 2004 and handed down on 19 August 2004.

2. This matter was listed in the light of a notice of objection to competency filed by the Minister for Immigration and Multicultural and Indigenous Affairs on 20 May 2005. Section 24(1AAA) of the Federal Court of Australia Act (1976) (Cth) (“the Act”) provides that:

   ‘An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court.’

   This appeal, therefore, is incompetent. 

3. There is a question, however, of whether there is power in a single judge to dismiss it.  The Federal Court has power to make orders to prevent abuse of its own process (deriving from s 23 of the Act and from the implied incidental power).  Section 23 provides:

   ‘The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds,…