FEDERAL COURT OF AUSTRALIA

MZWNG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 502

MIGRATION – where failure of appellant to attend hearing – appeal from Federal Magistrates Court – dismissed for non-attendance.

Federal Court Act 1976 (Cth), s 25(2B)(bb)(ii)

Federal Court Rules, O 52 r 18

Federal Magistrates Court Rules 2001, Rule 13.03A

MZWNG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 115 of 2005

CRENNAN J

27 APRIL 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY MCINNIS FM

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant to pay the respondent’s costs, fixed in the amount of $1,500.00

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY MCINNIS FM

REASONS FOR JUDGMENT

1                     The appellant filed a notice of appeal on 16 February 2005 seeking review of a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 27 January 2005, made pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001, in which the Federal Magistrate dismissed the appellant’s application on the basis of the appellant’s non‑appearance at the hearing and made orders dismissing the application with costs fixed in the sum of $4,000.00. 

2                     The respondent filed a notice of objection to competency pursuant to O 52 r 18 of the Federal Court Rules on the grounds that:

‘(a) The judgment of McInnis FM on 27 January 2005 is an interlocutory judgment and:

(i)                 pursuant to subsections 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth), an appeal cannot be brought from a judgment of the Federal Magistrates Court that is an interlocutory judgment unless the Federal Court or a Judge gives leave to appeal; and

(ii)               pursuant to Order 52 Rule 10(2)(b) of the Federal Court Rules, such leave must be sought within 7 days of pronouncement of the interlocutory judgment;

(iii)             no such leave has been sought or obtained; and

(iv)             no extension of time for the seeking of such leave has been sought or obtained.’

3                     The history of the matter may be stated briefly.  The hearing of the appellant’s application for review of the Refugee Review Tribunal’s decision was set down before McInnis FM on 27 January 2005.  However, the appellant failed to appear at the hearing and McInnis FM dismissed the application for non appearance pursuant to r 13.03A of the Federal Magistrates Court Rules 2001.  The appellant then sought reinstatement of the proceedings by letter dated 6 February 2005 and the application was set down for re hearing on 1 March 2005.  The appellant again failed to appear and McInnis FM refused the application for reinstatement of the proceedings and ordered that the applicant pay the respondent’s costs fixed in the sum of $1,300.00.

4                     The appellant has filed the notice of appeal in this Court seeking review of the decision of McInnis FM given on 27 January 2005.  The notice of appeal makes no reference to the appellant’s application for reinstatement of the proceedings in the Federal Magistrates Court on 1 March 2005.  The respondent has filed a notice of objection to competency on the basis that the decision of McInnis FM given on 27 January 2005 was an interlocutory decision and therefore the appellant required leave to appeal pursuant to ss 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’).  No application for leave has been filed.

5                     The matter was called on in the Federal Court on 27 April 2005.  The appellant failed to appear. 

6                     Given the appellant’s failure to appear, the appeal is dismissed under the provisions of s 25(2B)(bb)(ii) of the FCA Act, and the appellant is ordered to pay the respondent’s costs fixed at $1,500.00. 

Associate:

Dated:              27 April 2005