MZXTE v Minister for Immigration & Citizenship [2008] FCA 729

FEDERAL COURT OF AUSTRALIA

MZXTE v Minister for Immigration & Citizenship [2008] FCA 729

MZXTE v MINISTER FOR IMMIGRATION AND CITIZENSHIP

VID 129 of 2008

SUNDBERG J

21 MAY 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 129 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXTE

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 21 MAY 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs of the application fixed at $3922. 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 129 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXTE

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: SUNDBERG J

DATE: 21 MAY 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The matter before me purports to be an appeal against orders of a Federal Magistrate made on 11 February 2008 dismissing the applicant's application to that Court. 2 The applicant is a citizen of India who arrived in Australia on 4 July 2004. On 21 September 2006 he lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application. The appellant did not seek a review by the Refugee Review Tribunal ("Tribunal"). 3 The applicant sought judicial review in the Federal Magistrates Court of Australia. In what appear to be pro forma grounds, he claimed that the Tribunal exceeded its jurisdiction or failed to exercise its jurisdiction, denied him natural justice and procedural fairness, and was biased. He also claimed that the Tribunal failed to check the authenticity of his oral evidence, and failed to give him the opportunity to comment on the evidence. 4 As I have said, the applicant did not seek a review before the Tribunal. Rather he sought to have the Magistrate review the delegate's decision. 5 The Federal Magistrate dismissed the application for non appearance pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001. 6 The purported notice of appeal filed in this Court challenges the orders of the Federal Magistrate on what again appear to be pro forma grounds ‑ essentially that the Magistrate erred in failing to find jurisdictional error. The applicant seeks orders that the Tribunal re-consider his claim. As stated above, the matter has never been before the Tribunal. 7 The respondent has filed a Notice of Motion objecting to the competency of the "appeal" on the ground that the Magistrate's decision is interlocutory and no leave to appeal has been granted. 8 The respondent has also filed an Outline of Submissions. 9 Both documents were sent to the applicant's pre 15 April 2008 address. That was because the respondent was not informed of the change of address, though the Court was. 10 Because the applicant is unrepresented, the course I propose to adopt is to treat him as seeking leave to appeal, and to refuse that application on the ground that if leave were granted the appeal would have no prospect of success. The applicant did not appear before the Magistrate. He has not offered any explanation for this. Furthermore, if he had appeared and made submissions to the Magistrate, his Honour would have had no choice but to dismiss the "appeal" for want of jurisdiction. The Federal Magistrates Court has no jurisdiction to hear appeals from the Minister's delegate – the primary decision‑maker. 11 I note that an appeal is not the appropriate course for the applicant to have adopted. The proper course was to apply to the Magistrate for an order setting aside the Magistrate's order. 12 As is apparent from what I have said, I have taken the course I adopted in MZWIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 185 (see also MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] and MZXME v Minister for Immigration & Citizenship [2007] FCA 767), and instead of requiring the applicant to take the proper course, have considered whether there is sufficient merit in his case to justify the grant of leave to appeal. Plainly there is not. 13 In the light of what I have said above about the applicant's non‑receipt of the notice of motion and outline, I need not deal with the motion. 14 Leave to appeal is refused, and the applicant must pay the respondent's costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.