FEDERAL COURT OF AUSTRALIA

MZWFV v Minister for Immigration and Multicultural and

Indigenous Affairs [2005] FCA 923

MZWFV v Minister for Immigration and Multicultural and Indigenous Affairs

VID 1482 OF 2004

NORTH J

15 JUNE 2005

MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a decision of O’Dwyer FM. This appeal was heard by a single judge of this Court, pursuant to a determination made by the Acting Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) on 25 May 2005.

2                     On 18 November 2004 the Federal Magistrate dismissed an application made by the appellant to review a decision of the Refugee Review Tribunal made on 17 March 2004. The Federal Magistrate dismissed the application because the appellant did not appear. The Federal Magistrate delivered short reasons for judgment in which he explained that he did not intend to determine the merits of the application, but he relied on the appellant’s failure to appear as the reason for dismissing the application.

3                     The Federal Magistrate went on to explain that the appellant could challenge the order by making an application under r 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth). That rule provides that the Court may set aside its order if the order is made in the absence of a party.

4                     Instead of proceeding as indicated by the Federal Magistrate, the appellant filed an appeal to this Court. In order to succeed on such an appeal the appellant must show some legal error in the decision of the Federal Magistrate. The appellant has not shown any such error. On the hearing of the appeal the appellant was not represented and he sought to explain his failure to appear before the Federal Magistrate. He said that he rang the registry of the Federal Magistrates Court on the day of the hearing. However, there is no evidence that the Federal Magistrate received any notification from the appellant regarding his failure to appear.

5                     In any event, as the Federal Magistrate indicated, the appellant has a right to revisit the order of the Federal Magistrate in the Federal Magistrates Court. The appeal to this Court is misconceived and must fail.

Associate:

Dated: 5 July 2005