MZWUA v MIMA & Anor

[2007] HCATrans 495

[2007] HCATrans 495

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M155 of 2006

B e t w e e n -

MZWUA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 SEPTEMBER 2007, AT 9.16 AM

Copyright in the High Court of Australia

HAYNE J:   The applicant, a citizen of India of Sikh religion, seeks special leave to appeal against the orders of a single judge of the Federal Court of Australia (Middleton J) exercising the appellate jurisdiction of that Court. By those orders, Middleton J dismissed the applicant's appeal against orders of the Federal Magistrates Court (McInnis FM) dismissing an application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

The applicant did not attend the hearing before Middleton J in the Federal Court on 21 November 2006 and the orders made by Middleton J were made under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), which empowers a judge of the Federal Court to make an order that an appeal be dismissed for failure to attend a hearing in relation to the appeal. As there were no written submissions, Middleton J held that it was inappropriate to deal with the case on its merits in the absence of the applicant. His Honour further stated that the applicant could seek to have the order for dismissal in his absence set aside upon application. There is no evidence that the applicant has made such an application.

Accordingly, the decision from which the applicant seeks special leave to appeal is a discretionary decision of the Federal Court to dismiss an appeal for non‑attendance.  The applicant's written case does not demonstrate any error of principle in the exercise of that discretion, and there is no reason to doubt the correctness of the decision of Middleton J.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.18 AM THE MATTER WAS CONCLUDED