FEDERAL COURT OF AUSTRALIA
MZYBW v Minister for Immigration & Citizenship [2008] FCA 1745
MZYBW (PREVIOUSLY MZXCV) v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
VID 823 of 2008
SUNDBERG J
20 NOVEMBER 2008
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 823 of 2008 |
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BETWEEN: |
MZYBW (PREVIOUSLY MZXCV) Applicant
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AND: |
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGE: |
SUNDBERG J |
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DATE OF ORDER: |
20 NOVEMBER 2008 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The purported appeal be dismissed as incompetent.
2. The applicant pay the first respondent’s costs of and incidental to the purported appeal and the objection to competency dated 13 October 2008.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 823 of 2008 |
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BETWEEN: |
MZYBW (PREVIOUSLY MZXCV) Applicant
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AND: |
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGE: |
SUNDBERG J |
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DATE: |
20 NOVEMBER 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 The applicant’s application for a protection visa was refused in December 2004. The refusal was affirmed by the Refugee Review Tribunal. An application for review of the Tribunal’s decision was dismissed by the Federal Magistrates Court. An appeal to this Court was dismissed on 10 August 2006. An application for special leave to appeal was dismissed by the High Court. In May 2007 the applicant sought to file an application in the Federal Magistrates Court seeking review of the same Tribunal’s decision. A Registrar refused to accept the application for filing. The applicant sought review of that refusal, which was dismissed by the Federal Magistrates Court. An application to this Court for leave to appeal was dismissed in August 2007. The applicant then approached the Minister under s 417 of the Migration Act 1958 (Cth) requesting the grant of a visa. In July 2008 the Minister refused the request. The applicant then sought to file an application in the Federal Magistrates Court seeking review of the Minister’s refusal to exercise his discretion under s 417. A Registrar refused to accept the application for filing. A Magistrate dismissed the application to review the Registrar’s decision on the ground that the Court had no jurisdiction to review the Minister’s decision not to exercise his powers under s 417. The applicant now purports to appeal from that dismissal.
2 The Minister has filed an objection to competency on the ground that:
The decision challenged is a decision within the meaning of section 474, and in particular subsection 474(7)(a), of the Migration Act 1958.
By virtue of section 476A of the Migration Act 1958, this Honourable Court does not have original jurisdiction to entertain a challenge to the privative clause decision.
3 Sections 474(7)(a) and 476A sustain the objection to competency.
4 The purported appeal is dismissed as incompetent. The applicant must pay the first respondent’s costs.
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I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. |
Associate:
Dated: 20 November 2008
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The applicant appeared in person. |
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Counsel for the First Respondent: |
S Koya |
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Solicitors for the Respondents: |
DLA Phillips Fox |
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Date of Hearing: |
19 November 2008 |
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Date of Judgment: |
20 November 2008 |
