MZWNI v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 501

FEDERAL COURT OF AUSTRALIA

MZWNI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 501

MIGRATION – where failure of appellant to attend hearing – appeal from Federal Magistrates Court – dismissed for non-attendance.

Federal Court Act 1976 (Cth), s 25(2B)(bb)(ii)

MZWNI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
VID 107 of 2005

CRENNAN J
27 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 107 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY MCINNIS FM

BETWEEN:	MZWNI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	Crennan
DATE OF ORDER:	27 April 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant to pay the respondent’s costs, fixed at $1,500.00

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 115 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY MCINNIS FM

BETWEEN:	MZWNI APPLICANT
AND:	MINISTER FOR IMMIGRATION &MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	Crennan
DATE:	27 April 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant has filed a notice of appeal seeking review of a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 27 January 2005.  The Federal Magistrate dismissed the appellant’s application, dated 22 June 2004 for review of a decision of the Refugee Review Tribunal, for failure to appear. 

2. The respondent filed a notice of objection to competency on the basis that the decision of the Federal Magistrate was an interlocutory decision and therefore the appellant required leave to appeal pursuant to ss 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’). No application for leave has been filed.

3. The matter was called on in the Federal Court today, 27 April 2005.  There has been no appearance by the applicant.  The respondent’s have made an application today to seek dismissal of this appeal for non-appearance, alternatively for dismissal for incompetency having regard to the need to apply for leave to proceed in circumstances where none has been sought or granted. 

4. Given the applicant’s failure to appear, the appeal is dismissed pursuant to the provisions of s 25(2B)(bb)(ii) of the FCA Act. I also note that an alternative basis for dismissal would have been the incompetency of the appeal as described. The appellant is ordered to pay the respondent’s costs fixed at $1,500.00.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Associate:

Dated:            27 April 2005

Self-represented litigant:	No appearance
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 April 2005
Date of Judgment:	27 April 2005