NBBM v Minister for Immigration and Multicultural Affairs

[2006] FCA 704

FEDERAL COURT OF AUSTRALIA

NBBM v Minister for Immigration and Multicultural Affairs [2006] FCA 704

MIGRATION – application for leave to appeal against interlocutory orders from the Federal Magistrates Court dismissed

NBBM v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FMCA 51 not disturbed

NBBM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 232 OF 2006

GYLES J
24 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 232 OF 2006

BETWEEN:

NBBM
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

24 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The application for leave be dismissed.

2.   The applicant pay the costs of the first respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 232 OF 2006

BETWEEN:

NBBM
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	24 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against interlocutory orders made in the Federal Magistrates Court. The effect of those orders was to decline to set aside earlier orders of that Court which had dismissed an application for non-appearance pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) as they stood in September 2005 (NBBM v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] FMCA 51).

2. The reasons for judgment indicate that the learned Federal Magistrate firstly considered the applicant’s explanation for the earlier non-appearance.  It was concluded that the Court had given appropriate notice of the hearing to the applicant at the address which he had provided by way of notice of change of address for service.  The learned Federal Magistrate appears to me to have approached the matter in a perfectly conventional manner and found that there was no sufficient explanation for non-attendance in view of the fact that the Federal Magistrates Court Rules 2001 (Cth) had been complied with. Indeed, it is suggested that there was no real explanation provided at all. I can see no possibility of appealable error being shown in relation to that matter. The applicant before me simply says that the person at that address did not pass the document on to him. That does not establish appealable error in the court below on this point.

3. The learned Federal Magistrate pointed out that if there had been a sufficient explanation it would also have been necessary to decide whether the applicant raised a serious question to be tried.  No such basis was found in the Federal Magistrates Court.

4. Before me, the applicant refers in a roundabout way to noncompliance with s 424A of the Migration Act 1958 (Cth), which of course has been a very fashionable point to raise following certain authorities of the High Court and of this Court. He concedes those matters were not raised in the application to the Magistrates Court, and indeed has not been raised in any of the documents which have been filed in the application before this Court. He does not descend to any detail as to how the point might apply, but merely makes a formulaic oral submission. Thus, there does not appear to have been any basis upon which the learned Federal Magistrate could have found that there was an arguable case to be tried, if it was necessary to reach such a decision.

5. However, the major difficulty with the application is that there is no proper explanation for the applicant’s original non-appearance before the Federal Magistrates Court.  The Rules of Court are there for a particular purpose and the learned Federal Magistrate was entitled to come to the view he came to in this matter.  I therefore dismiss the application for leave and order that the applicant pay the costs of the first respondent. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             6 June 2006

The Applicant  appeared in person
Solicitor for the First Respondent:	Mr AJ Crockett of Australian Government Solicitor
Date of Hearing:	24 May 2006
Date of Judgment:	24 May 2006