MZXCN v Minister for Immigration and Multicultural

[2005] FCA 1889

FEDERAL COURT OF AUSTRALIA

MZXCN v Minister for Immigration and Multicultural
and Indigenous Affairs [2005] FCA 1889

MZXCN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1481 of 2005

NORTH J
7 DECEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1481  OF 2005

BETWEEN:	MZXCN APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	7 DECEMBER 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed as incompetent.

2.        The applicant is to pay the respondent’s costs fixed at $800.

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 1481  OF 2005

BETWEEN:	MZXCN APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	7 DECEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from the judgment of Federal Magistrate Connelly delivered on 26 October 2005. The Federal Magistrate ordered that the application filed on 29 August 2005 be dismissed under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 and that the applicant pay the respondent’s costs fixed at $2690.

2. The appellant filed a Notice of Appeal on 15 November 2005. On 25 November 2005, the respondent filed a Notice of Objection to Competency. The grounds of the objection are that the judgment of the Federal Magistrate was an interlocutory judgment, under s 24(1)A of the Federal Court of Australia Act 1976 (Cth) an appeal cannot be brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a judge gives leave to appeal, and no such leave had been sought or obtained. These grounds have been made out. The objection to competency, therefore, must succeed.

3. The decision of the Federal Magistrate was delivered in the absence of the applicant.     The proper course is for the applicant if he wishes to apply to the Federal Magistrates Court to have the order set aside under r 16.05(2)(a).  Even if I regarded the applicant as making an oral application for leave, I would refuse such an application in these circumstances.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North .

Associate:

Dated:             7 December 2005

Counsel for the Applicant:	in person (by videolink to Sydney)
Counsel for the Respondent:	Mr Carrol
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 December 2005
Date of Judgment:	7 December 2005