FEDERAL COURT OF AUSTRALIA

BTR15 v Minister for Immigration and Border Protection [2016] FCA 209

ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed with costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from a decision of the Federal Circuit Court, in which the primary Judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) for want of the appearance of the appellant at those proceedings. The Tribunal had affirmed a decision of a delegate of the Minister to refuse the appellant a visa, on the basis that the Tribunal was not satisfied that the appellant met the criteria of the Refugee Convention set out in s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth).

2    The appellant appeared at the hearing before me. His grounds of appeal were:

1.    The Applicant believes the decision made by the first respondent have to be reviewed again

2.    The applicant still face the problems and he believes he still eligible for the protection visa

3.    The applicant was not given the opportunity to represent himself for the hearing.

(errors in original.)

3    The appellant sought the following orders:

1.    Re-hearing the matter before the federal circuit court of Australia

2.    Review the applicants protection visa application

(errors in original.)

4    On 15 December 2015 the Minister filed a notice of objection to the competency of the appeal. In summary, the Minister claimed that:

    the decision of the primary Judge was an interlocutory decision;

    the appellant required leave to appeal to appeal that decision, because it was an interlocutory decision;

    the appellant had not sought leave to appeal the decision;

    it followed that the Court does not have jurisdiction to hear the appeal.

5    There was some discussion about whether the Court ought treat the present appeal as also seeking leave to appeal. In the circumstances however I was not prepared to do this, and considered the notice of objection to competency be upheld, for the following reasons.

6    First, the grounds of appeal put to me are vague and, without particularisation, simply constitute assertions. Further, the appellant was unable to articulate either written or oral submissions relating to the grounds of appeal. On this basis no contentions have been put to me which would support a finding that the primary decision warranted reconsideration. In the current circumstances I would not be prepared to grant leave to appeal against the primary decision.

7    Second, the Minister is correct in contending that the appeal in its present form is incompetent, as leave to appeal would be necessary.

8    One course open to the appellant is to apply to the Federal Circuit Court directly to have the decision set aside and the matter reheard. This is, however, a matter for the appellant.

9    The appropriate course of action is to dismiss the appeal as incompetent, with costs to be taxed if not agreed.

Associate:

Dated:    9 March 2016