NBLY v Minister for Immigration and Multicultural Affairs

[2006] FCA 1051

FEDERAL COURT OF AUSTRALIA

NBLY v Minister for Immigration and Multicultural Affairs [2006] FCA 1051

MIGRATION – application for leave to appeal dismissed

NBLY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 823 OF 2006

GYLES J
9 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 823 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NBLY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GYLES J
DATE OF ORDER:	9 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed. 

2.The applicant pay the costs of the 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 823 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NBLY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GYLES J
DATE:	9 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 30 March 2006 a Federal Magistrate dismissed an application for review due to the failure of the applicant to appear pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001. Reasons were given for that decision which set out a history of the matter. The applicant for leave, who was the applicant in that matter, then sought a review of that decision and applied to set it aside pursuant to r 16.05 of the Federal Magistrates Courts Rules 2001. The applicant explained the failure to appear by asserting confusion as to the hearing date. The Federal Magistrate who heard that application did not accept the applicant’s version of events and did not accept that there was any proper explanation of the failure to appear. This was fatal to the application to set aside the earlier dismissal. However, the learned Federal Magistrate went on to express the opinion that, in any event, the applicant had not shown that there was a case fit to be tried on the merits.

2. The jurisdiction of this Court in a matter of this kind, which involves the practice and procedure of the Federal Magistrates Court, is to correct errors of law or errors of principle that occur at the level of that court.  Leave to appeal is not granted unless such error is arguable.  Having read each of the decisions of the learned Federal Magistrate I can detect no error of principle in what occurred.  Each matter was dealt with in a perfectly orthodox manner according to well established principles.  There would be no possibility, in my opinion, of any appeal to this Court being successful.  Leave to appeal is therefore refused.

3. It should be noted that the consequence of this decision is that the applicant has not had any hearing on the merits of her application to the Federal Magistrates Court.  It is also to be noted that the Refugee Review Tribunal decision, which is the decision that she wished to challenge, in fact arose out of that Tribunal refusing to exercise jurisdiction because application to it had been made one day late.  The consequence is that the applicant has never had her case heard on the merits.  It is not the task of this Court to give legal advice or to make any further comment on the matter beyond saying that, if the applicant does have a case with some underlying merit, then she should, as a matter of urgency, seek legal advice to ascertain whether or not there is any way of bringing fresh proceedings to have her case tested.

4. The application for leave is dismissed.  The applicant must pay the costs of the respondent.

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

Associate:

Dated:        14 August 2006

The applicant appeared in person
Solicitor for the Respondent:	Mr Anthony Cox of Phillips Fox
Date of Hearing:	9 August 2006
Date of Judgment:	9 August 2006