MZYBW v Minister for Immigration and Citizenship

[2008] FCA 1745

FEDERAL COURT OF AUSTRALIA

MZYBW v Minister for Immigration & Citizenship [2008] FCA 1745

MZYBW (PREVIOUSLY MZXCV) v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 823 of 2008

SUNDBERG J
20 NOVEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 823 of 2008

BETWEEN:

MZYBW (PREVIOUSLY MZXCV)
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	20 NOVEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The purported appeal be dismissed as incompetent.

2.The applicant pay the first respondent’s costs of and incidental to the purported appeal and the objection to competency dated 13 October 2008.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 823 of 2008

BETWEEN:

MZYBW (PREVIOUSLY MZXCV)
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SUNDBERG J
DATE:	20 NOVEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant’s application for a protection visa was refused in December 2004. The refusal was affirmed by the Refugee Review Tribunal. An application for review of the Tribunal’s decision was dismissed by the Federal Magistrates Court. An appeal to this Court was dismissed on 10 August 2006. An application for special leave to appeal was dismissed by the High Court. In May 2007 the applicant sought to file an application in the Federal Magistrates Court seeking review of the same Tribunal’s decision. A Registrar refused to accept the application for filing. The applicant sought review of that refusal, which was dismissed by the Federal Magistrates Court. An application to this Court for leave to appeal was dismissed in August 2007. The applicant then approached the Minister under s 417 of the Migration Act1958 (Cth) requesting the grant of a visa. In July 2008 the Minister refused the request. The applicant then sought to file an application in the Federal Magistrates Court seeking review of the Minister’s refusal to exercise his discretion under s 417. A Registrar refused to accept the application for filing. A Magistrate dismissed the application to review the Registrar’s decision on the ground that the Court had no jurisdiction to review the Minister’s decision not to exercise his powers under s 417. The applicant now purports to appeal from that dismissal.

2. The Minister has filed an objection to competency on the ground that:

   The decision challenged is a decision within the meaning of section 474, and in particular subsection 474(7)(a), of the Migration Act 1958.

   By virtue of section 476A of the Migration Act 1958, this Honourable Court does not have original jurisdiction to entertain a challenge to the privative clause decision.

3. Sections 474(7)(a) and 476A sustain the objection to competency.

4. The purported appeal is dismissed as incompetent. The applicant must pay the first respondent’s costs.

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

Associate:

Dated:        20 November 2008

The applicant appeared in person.
Counsel for the First Respondent:	S Koya
Solicitors for the Respondents:	DLA Phillips Fox

Date of Hearing:	19 November 2008
Date of Judgment:	20 November 2008