MZWFV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWFV v MINISTER FOR IMMIGRATION [2005] FMCA 1479

MIGRATION – Review of RRT decision – application to set aside order dismissing proceedings for non–attendance – basis for setting aside – reason for non-attendance – application to set aside dismissed.

Migration Act 1958 s.474
Federal Magistrates Court Rules 2001 r.16.05

Applicant: MZWFV

Respondent: MINISTER FOR IMMIGRATION

File Number: MLG453 of 2004

Judgment of: O’Dwyer FM

Hearing date: 15 July 2005

Delivered at: Melbourne

Delivered on: 15 July 2005

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr T. Mosby

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application filed on 30 June 2005, which application was taken to be an application under Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001, be dismissed.

2. That the Applicant pay the Respondent's costs fixed in the sum of $600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG453 of 2004

MZWFV

Applicant

And

MINISTER FOR IMMIGRATION

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This application was filed on 20 June 2005 and in it the Applicant sought orders to the effect that the Refugee Review Tribunal decision of 8 April 2004 be set aside.  For the reasons set out below the orders sought in the application are inappropriate and obviously in error.

2. It is to be noted that there is a history to this application as follows.  The applicant filed an earlier application for review on 30 April 2004 in respect of the decision of the Refugee Review Tribunal (the Tribunal) which was handed down on 8 April 2004.  That application came on for hearing on 18 November 2004, but the Applicant failed to attend and it was dismissed because of the non‑attendance of the Applicant.

3. In response to my order of 18 November 2004, the applicant on

   
   

   7 December 2004 filed an appeal in the Federal Court.  That appeal was dismissed on 15 June 2005 by his Honour North J on the basis that it was incompetent.  The reason why it was incompetent was that the Applicant had chosen the wrong course of action in response to my orders of 18 November 2004.

4. The proper course of action for the applicant was to make an application under r.16.05(2)(a) of the Federal Magistrate Court Rules 2001. His Honour North J effectively sent the applicant back to this court to make such an application. Rule 16.05(2)(a) provides, in effect, that when an order is made in the absence of a party, this court can set it aside. However, in error, the Applicant filed another application for review of the Tribunal’s decision.

5. As stated earlier, the application filed on 20 June 2005 is not expressed in the terms of an application under rule 16.05(2)(a). In my view, however, that failure is reflective of the fact that the applicant is not represented by a legally qualified person. It would be an injustice to the applicant to punish him for a lack of understanding of the process in these circumstances and…