MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544

FEDERAL COURT OF AUSTRALIA

MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544

MZWZC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 199 OF 2006 SUNDBERG J 12 MAY 2006 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 199 OF 2006

BETWEEN: MZWZC

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 12 MAY 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an extension of time in which to apply for leave to appeal be granted. 2. The application for leave to appeal be dismissed. 3. The applicant pay the first respondent's costs of the application.

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 199 OF 2006

BETWEEN: MZWZC

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SUNDBERG J

DATE: 12 MAY 2006

PLACE: MELBOURNE

REASONS FOR JUDGMENT Background 1 This is an application for an extension of time in which to file and serve an application for leave to appeal and an application for leave to appeal from a judgment of Riethmuller FM of 10 February 2006. 2 This application comes with a somewhat lengthy history, which bears reciting. The applicant is a citizen of Lebanon. His application for a protection visa was refused by a delegate of the first respondent on 8 July 2004, following which he sought review of the decision in the Refugee Review Tribunal (the Tribunal). On 13 January 2005 the Tribunal sent the applicant a letter in which it stated it was unable to make a decision in his favour unless it was provided with further information. After being invited to attend a hearing before the Tribunal on 8 March 2005, the applicant did not appear. Other than his original visa application form, which contained scant information, the applicant submitted no materials in support of his claim before the Tribunal. The Tribunal affirmed the decision of the delegate not to grant a protection visa by decision made and signed on 9 March 2005. However the decision was not handed down until 1 April 2005. The applicant claims that on 9 March 2005 he requested a further hearing before the Tribunal which was refused. 3 In an application before the Federal Magistrates Court heard on 19 December 2005 the applicant sought review of the decision of the Tribunal. The applicant did not appear before the Magistrate but had filed a medical certificate with the Registry which the Magistrate treated as an informal application for an adjournment. After considering the relevant authorities the Magistrate was not satisfied that there was sufficient basis for an adjournment. 4 In the Magistrate's Court the applicant made various claims in relation to the Tribunal's findings of fact. The Magistrate found that the Tribunal did not have an obligation to investigate or make out a case for the applicant. On 19 December 2005 the Magistrate dismissed the application for review on the basis that the Tribunal's findings were open to it on the material before it, and had made clear in its decision its reasons for adverse findings in respect of the claims. 5 On 10 February 2006 an application was made to the Federal Magistrates Court to set aside the decision of 19 December 2005. The Magistrate treated this application as one made under rule 16.05(2)(a) of that Court's Rules, which relates to setting aside a judgment when a party has not appeared. After consideration of the relevant authorities and circumstances, the Magistrate dismissed the application on 10 February 2006. 6 A notice of appeal against that decision was filed on 2 March 2006. A notice of objection to competency was filed by the respondent on 10 March 2006 on the grounds that the orders subject to the appeal were interlocutory in nature. An application for extension of time to file and serve an application for leave to appeal and an application for leave to appeal were filed on 3 April 2006 along with an affidavit stating the grounds of the application.