MZYIZ v Minister for Immigration and Citizenship [2010] FCA 1449 (1 December 2010)

Last Updated: 21 December 2010

FEDERAL COURT OF AUSTRALIA

MZYIZ v Minister for Immigration and Citizenship [2010] FCA 1449

Citation:		MZYIZ v Minister for Immigration and Citizenship [2010] FCA 1449
Appeal from:		MZYIZ v Minister for Immigration & Anor (No 2) [2010] FMCA 755
Parties:		MZYIZ v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 894 of 2010
Judge:		BROMBERG J
Date of judgment:		1 December 2010
Catchwords:		PRACTICE AND PROCEDURE – Migration – Refugee Review Tribunal affirmed decision of Minister’s delegate not to grant Protection Visa – Applicant sought judicial review out of time – Application for extension of time dealt with by Federal Magistrate and rejected on basis that there was no satisfactory reasons for the delay and that the substantive application lacked merit – Application for leave to appeal against judgment of Federal Magistrate – decision made by the learned Federal Magistrate not to extend made pursuant to s 477(2) Migration Act 1958 – s 476(3)(a) Migration Act 1958 – Federal Court lacks jurisdiction to hear appeal of decision made under s 477(2) – Held: Application must fail for want of jurisdiction –Application dismissed – Costs awarded
Legislation:		Migration Act 1958 (Cth) s 476A(3)(a), s 477(2)
Date of hearing:	1 December 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Applicant:	The Applicant did not appear
Counsel for the First Respondent:	Mr C Warfe
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 894 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZYIZ Applicant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	1 DECEMBER 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the first respondent’s costs of this application.
   

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 894 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZYIZ Applicant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BROMBERG J
DATE:	1 DECEMBER 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of the Federal Magistrates Court given on 12 October 2010. The learned Federal Magistrate dealt with and decided the applicant's application for an extension of time in which to seek judicial review in the Federal Magistrates Court of a decision of the Refugee Review Tribunal made on 4 January 2010. The Refugee Review Tribunal affirmed the decision of the delegate to the first respondent not to grant the applicant’s application for a protection (class XA) visa. The application for an extension of time was dealt with by the learned Federal Magistrate and was rejected on the basis that there was no satisfactory reason for the delay in making the application, and that the substantive application lacked merit.
2. The first respondent, by an amended Notice of Objection to Competency, submitted that the application before the Court was not competent, in the sense that there is no jurisdiction for the Court to deal with the decision sought to be appealed from. Mr Warfe appeared on behalf of the first respondent. The applicant made no appearance. Despite the failure of the applicant to appear, I determined to hear the matter in the applicant's absence.
3. I am satisfied that this application should be dismissed. The decision made by the Federal Magistrate not to extend time was a decision made pursuant to
   s 477(2) of the Migration Act 1958 (“the Migration Act”). Section 476A(3)(a) provides as follows:

(3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

1. a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2);
   

4. It is apparent that by reason of s 476A(3)(a), this Court has no jurisdiction to hear an appeal from a judgment of the Federal Magistrates Court made under subsection 477(2) of the Migration Act. There being no jurisdiction to deal with an appeal from a decision made by a Federal Magistrate pursuant to subs 477(2) of the Migration Act, there can be no basis for the Court granting leave for such an appeal to be brought. In those circumstances, the application for leave to appeal must be dismissed. I will make orders that the application be dismissed and that the applicant pay the first respondent’s costs.
   

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated: 1 December 2010