FEDERAL COURT OF AUSTRALIA

MZYHQ v Minister for Immigration and Citizenship [2010] FCA 1011

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

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

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The proceeding listed for hearing before the Court at this time was commenced by the filing of a notice of appeal on 16 April 2010.  The purported appeal is from the judgment of the Federal Magistrates Court of Australia, given on 7 April 2010, and published as MZYHQ v Minister for Immigration & Anor [2010] FMCA 277.  The learned federal magistrate dismissed an application by the appellant to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 7 April 2009.  The Tribunal is the second respondent to the appeal.  The Tribunal dismissed an application by the appellant for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”), the first respondent to the appeal, refusing to grant the appellant a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) (“the Migration Act”). 

2                     The reasons for judgment of the federal magistrate make clear that his Honour dismissed the application to the Federal Magistrates Court on the basis that it was not lodged within the 35-day period specified by s 477 of the Migration Act.  The federal magistrate considered the grounds of the application before that court for the purpose of determining whether he would extend the period so specified.  Because his Honour found that the grounds lacked any substance, and therefore the application could not succeed, his Honour declined to extend the time for filing it.

3                     It is clear that a judgment founded on a refusal to extend the time limit for filing an application, and therefore founded on the proposition that the application is incompetent, is to be regarded as an interlocutory judgment.  Authority for this proposition is found in the Full Court judgment in Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38.  The nature of the judgment of the Federal Magistrates Court in that case appears from [12].  The view of the Full Court that the appeal was from an interlocutory judgment appears at [17].  I am, of course, bound by that Full Court judgment.

4                     By s 24(1A) of the Federal Court of Australia Act 1976 (Cth), an appeal is not to be brought from a judgment that is an interlocutory judgment, unless the Court or a judge gives leave to appeal.  Plainly, therefore, the appeal that the appellant has attempted to lodge is presently incompetent, because it would require leave to appeal.  No formal application for leave to appeal has been filed.  The time within which such an application for leave is required to be made is specified in O 52 r 5 of the Federal Court Rules.  That time is 21 days after the judgment was pronounced, unless the court or judge pronouncing it fixes a later date for that purpose.  No such later date was fixed in the present case.

5                     Of course, it would have been open to the appellant to apply to extend the time fixed by O 52 r 5, so as to permit him to make an application for leave to appeal at the present time.  The problem is that the appellant has not appeared today, when the appeal has been called on for hearing.  If he had appeared, and if he had applied for an extension of time to make an application for leave to appeal, and had made such an application, it would have been necessary to consider the grounds in the notice of appeal, and to consider whether the appellant had an arguable case for establishing error on the part of the federal magistrate, so that there would be some utility in permitting the appeal to proceed.

6                     An examination of the grounds of appeal specified in the handwritten notice of appeal does not suggest that the appellant could have made any substantial case of utility in relation to the appeal.  The grounds do nothing other than take issue with factual findings made by the Tribunal that were adverse to the appellant’s claims.  Because of the absence of the appellant, I am left with the situation in which the appeal that he has purportedly instituted is incompetent.  It must be dismissed on that basis.

7                     Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the appeal.  Such an order is in accordance with the principle that costs follow the event.  Nothing appears from the material before me that would oust that principle, the application of which requires that the successful party’s costs be paid by the unsuccessful party.  Accordingly, there will be an order in favour of the Minister for the costs of the appeal.

8                     The orders of the Court are:

1.         The appeal be dismissed.

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

Associate:

Dated:         14 September 2010