FEDERAL COURT OF AUSTRALIA

MLGXAL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 966

MIGRATION – purported appeal from judgment of Federal Magistrate – dismissal by Federal Magistrate of application due to failure to appear – whether Federal Court not competent to hear appeal – whether judgment of Federal Magistrate of an interlocutory nature – whether leave of Court required to appeal Federal Magistrate’s judgment – failure to seek leave to appeal – failure to comply with directions – failure to attend hearing

Held: the appeal be struck out as incompetent

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Federal Court Rules, O 52 r 5

Federal Magistrates Court Rules 2001, r 16.05(2) and r 13.03A

MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172

MLGXAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID190 OF 2006

WEINBERG J

31 JULY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The objection to competency be allowed.

2.                  The appeal be struck out as incompetent.

3.                  The applicant pay the first respondent’s costs.

4.                  The Refugee Review Tribunal be joined as a party to the proceeding.

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

REASONS FOR JUDGMENT

1                     By what purports to be a notice of appeal, filed on 28 February 2006, the applicant challenges a decision of Riethmuller FM, given on 7 February 2006, dismissing her application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The application was dismissed pursuant to r 13.03A of the Federal Magistrates Court Rules 2001 for “default of appearance of a party”.

2                     The notice of appeal contains a narrative account of why the applicant fears returning to her home country, India. However, it contains nothing that could remotely be described as a viable ground of judicial review.

3                     The Tribunal’s decision was delivered on 8 April 2005. It noted that the applicant had arrived in Australia on 24 December 2000, and lodged an application for a protection visa on 7 November 2003. Having considered that application, the Tribunal wrote to the applicant on 18 November 2004, informing her that it was not minded to grant the application on the papers, but inviting her to give evidence and present oral arguments at a hearing on 20 December 2004. The applicant declined to attend. The Tribunal then did what it had intimated it might, and dismissed her case on the papers.

4                     The Tribunal found that the applicant was a 36 year old married woman from Wrangler, in India. Her husband had been a supporter of the Naxalites, a Maoist group that was generally hostile to the government. The Naxalites were described as taking money forcefully from the rich, and distributing it amongst the poor. They sought a separate state, cut off from India.

5                     The Tribunal noted that the Naxalites were blamed for an attack, in 2003, upon the Chief Minister of Andhra Pradesh, Mr Chandra Babu Naidu, who had been injured when land mines exploded in the vicinity of his car, and accompanying convoy. As a result, a great deal of pressure had been put on police to crack down on the Naxalites and their supporters.

6                     The applicant said that her native town was Warrangul, where the Naxalites had a heavy presence. She informed the Tribunal, in her written submission, that her husband had been taken into custody several times for questioning, and that he had received a number of phone calls seeking information as to the whereabouts of various Naxalites. She said that her husband was not part of the group, but was known to be sympathetic to its objectives. She said that her family had advised her not to return to India until this problem had been resolved.

7                     After considering detailed country information regarding the Naxalites, the Tribunal set out its findings. It noted that the applicant’s claims centred around the period September to October 2003 and that, since that time, she had not provided updated information in relation to the situation regarding her husband. The Tribunal further noted that the applicant had claimed that her husband was “supportive” of the Naxalites, but had not provided any other details about this critical issue, save to say that he was not part of the group. By that, the Tribunal understood that he did not belong to the Naxalite movement.

8                     The Tribunal found that the questioning by the police of the applicant’s husband was simply a response to the attempted assassination of the Chief Minister of Andhra Pradesh. She had not reported any further questioning or harassment since the time she first applied for a protection visa. The Tribunal found that these actions by the police towards a supporter of an outlawed group were legitimate police actions, and in any event not sufficiently severe to constitute persecution under the Refugees Convention. It therefore found that the applicant did not have a well-founded fear of Convention-based persecution, either now, or in the reasonably foreseeable future, were she to return to India.

9                     By notice filed on 17 March 2006, the respondent Minister objects to the competency of this Court to hear this appeal. The respondent contends that the judgment of Riethmuller FM is an interlocutory judgment and, pursuant to s 24(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 interlocutory unless leave is given. See MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 (“MZWXC”). Pursuant to O 52 r 5 of the Federal Court Rules, such leave must be sought within 21 days of the pronouncement of the interlocutory judgment. No such leave has been sought. Nor has any application been made for an extension of time within which to bring an application for leave to appeal.

10                  The applicant’s difficulties are compounded by the fact that she was warned, in terms, by the respondent’s legal representatives, that her application was incompetent, and that the more appropriate course for her to adopt was to make application to the Federal Magistrates Court seeking to set aside orders made in her absence, pursuant to r 16.05(2) of the Federal Magistrates Court Rules 2001. See, for example, MZWXC at [9]. The applicant has, unwisely, chosen to disregard that advice. She has also failed to comply with directions regarding the filing of contentions, and did not appear at the hearing today.

11                  Even giving the applicant the widest possible latitude, there is nothing that this Court can, or should, do for her. Her notice of appeal invites merits review. There is no basis upon which any discretion should now be exercised in her favour.

12                  The objection to competency must be allowed. The appeal is struck out as incompetent. The applicant must pay the respondent’s costs.

13                  In accordance with the usual practice, the Tribunal should be joined as a party to this proceeding.

Associate:

Dated: 31 July 2006