MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665

FEDERAL COURT OF AUSTRALIA

MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665 MZWRW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL VID 1238 OF 2005

RYAN J

4 december 2006

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY vid 1238 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWRW

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J DATE OF ORDER: 4 december 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The first respondent's objection to the competency of the appeal be upheld. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs of the appeal, to be taxed in default of agreement. 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 1238 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZWRW

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 4 december 2006

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The first respondent ("the Minister") has raised an objection to the competency of the appeal by the appellant against orders of McInnis FM on 3 October 2005, dismissing an application to set aside orders which had been made by the Federal Magistrates Court on 19 August 2005. 2 By way of background, the appellant, a Sri Lankan citizen, first arrived in Australia on 27 May 1997 on a student visa, and, on 29 January 1999, returned to Sri Lanka due to the illness of his father. He came back to Australia on 1 March 1999, and, on 12 November 2003, lodged an application for a protection visa. The application was refused by a delegate of the Minister on 10 April 2004 and that refusal was affirmed by the Refugee Review Tribunal ("the Tribunal") in a decision handed down on 10 September 2004. On 15 October 2004, the appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal's decision. That application was listed for hearing on 19 August 2005 before McInnis FM. 3 On 19 August 2005, the appellant failed to appear at the hearing, and his Honour, pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001, dismissed for non-appearance the application for review. On 7 September 2005 the appellant applied to the Federal Magistrates Court to set aside the orders which had been made by McInnis FM on 19 August 2005. 4 In ex tempore reasons for judgment given at the end of the hearing on 3 October 2005, McInnis FM noted that the original application had been listed by the Registrar for hearing on 19 August 2005, and that the appellant had been given eight months in which to prepare his case. His Honour further regarded as inadequate the appellant's evidence on affidavit by way of explaining his non-attendance at the hearing on 19 August 2005. That evidence consisted only of these paragraphs; '1. I was sick and I did not attend the hearing on 19th August 2005.