NBDA v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1346

FEDERAL COURT OF AUSTRALIA

NBDA v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1346

NBDA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1267 of 2004

WILCOX ACJ
12 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1267 of 2004

BETWEEN:	NBDA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX ACJ
DATE OF ORDER:	12 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the jurisdiction of the Court in this matter be exercised by a single judge.

2.        The objection to competency be upheld and the purported appeal be dismissed.

3.The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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 1267 of 2004

BETWEEN:	NBDA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX ACJ
DATE:	12 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX ACJ:

1. This matter came before me for directions this morning. It is a purported appeal against a decision of Raphael FM dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) pursuant to rule 13.03 of the Federal Magistrates Court Rules (‘the Rules’). That rule applies where a party fails to take a step required by the Rules or to comply with an order of the Federal Magistrates Court. Apparently, an order had been made by the Federal Magistrates Court that the appellant file an amended application which showed a ground of review of a jurisdictional nature. After the appointed day, the appellant did file a document. It was entitled ‘Amended Application’, but it did not reveal any proper ground of appeal.

2. As I understand Raphael FM’s reasons, the main ground for his decision was not that the document was filed late, but that it failed to disclose any allegation of jurisdictional error.  Raphael FM had considered the reasons for decision of the Tribunal.  He was unable to discern any jurisdictional error.  I also have considered whether the Tribunal's reasons disclose jurisdictional error.  I am unable to find any such error. 

3. The respondent has filed a notice of objection to competency on the basis that the decision of Raphael FM is interlocutory and the appellant has not been given leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’). This objection is well taken. Raphael FM’s decision is certainly interlocutory and no leave to appeal has been granted. Accordingly, the objection to competency should be upheld.

4. In the ordinary course, there might be a problem about my dealing with this matter today. However, at the present time, I am Acting Chief Justice of the Court. Therefore, it is open to me to make an immediate direction pursuant to s 25(1A) of the Act. Pursuant to that subsection, I direct that the jurisdiction of the Court in relation to the present matter be exercised by a single judge. I uphold the objection to competency and I dismiss the purported appeal. I order the appellant to pay the 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 Acting Chief Justice Wilcox.

Associate:

Dated:             28 October 2004

The Appellant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Ms B Rayment, Sparke Helmore
Date of Hearing:	12 October 2004
Date of Judgment:	12 October 2004