MZWOQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1436

FEDERAL COURT OF AUSTRALIA

MZWOQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1436

MIGRATION - Objection to competency – appeal from interlocutory judgment – no arguable basis to challenge decision of Refugee Review Tribunal – leave to appeal refused

Applicant M1 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 469, referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, referred to MZWOQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL V673 of 2004 MARSHALL J 13 OCTOBER 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1036 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWOQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 13 OCTOBER 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal. 3. The Refugee Review Tribunal is joined as a respondent to the appeal. 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 1036 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWOQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MARSHALL J

DATE: 13 OCTOBER 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant is a citizen of India. He wishes to remain in Australia because he says that he fears persecution if returned to India, on account of his religion and political opinion. The Minister's delegate refused his application for a protection visa. The Refugee Review Tribunal affirmed the delegate's decision. The Tribunal invited the appellant to appear before it. The appellant, apparently on the advice of his migration agent, did not appear before the Tribunal. 2 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. He failed to appear at the hearing before that Court. The Federal Magistrates Court dismissed his application. He applied to reinstate it but McInnes FM refused that application. 3 The appellant filed a notice of appeal from the refusal to reinstate the application. Paragraph 2 of the notice of appeal says: "The appeal is brought as of right and not pursuant to leave to appeal." 4 The Minister objects to the competency of the appeal. She says that the refusal to reinstate the application is an interlocutory judgment. She says the appellant requires leave to appeal from that interlocutory judgment and should have applied to do so, within the 21 days required by the Rules of Court, but deliberately did not do so. 5 The appellant requires leave to appeal; see Applicant M1 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 469 at [9]. I refuse leave as there is no arguable basis to challenge the decision of the Tribunal, on the ground that it made a jurisdictional error with respect to the appellant. 6 The Tribunal invited the appellant to appear before it. He chose not to appear and did so at his own peril. He does not raise any plausible argument to show that the Tribunal committed a jurisdictional error in dealing with his review application. It is no fault of the Tribunal that the appellant did not attend, even if he received bad advice from his migration agent. Counsel challenged that aspect of the Tribunal's reasoning which referred to a lack of evidence to support the appellant's case. That issue refers to a finding of fact made by the Tribunal and not to any jurisdictional error. 7 As the proposed appeal is bound to fail, no purpose is served in granting leave to appeal. 8 In light of the judgment of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, the Tribunal is joined as a respondent. The appeal is dismissed, with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.