Applicant M33 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 116 (13 February 2004)

Last Updated: 7 May 2004

FEDERAL COURT OF AUSTRALIA

Applicant M33 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 116

APPLICANT M33 OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 12 OF 2004


NORTH, FINKELSTEIN, WEINBERG JJ
13 FEBRUARY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V12 OF 2004

BETWEEN:	APPLICANT M33 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH, FINKELSTEIN AND WEINBERG JJ
DATE OF ORDER:	13 FEBRUARY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.	The purported appeal be dismissed as incompetent.
2.	The applicant pay the respondent’s costs of and incidental to this application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V12 OF 2004

BETWEEN:	APPLICANT M33 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH, FINKELSTEIN AND WEINBERG JJ
DATE:	13 FEBRUARY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1 Before the Court is a notice of motion which was filed by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, on 2 February 2004. The motion seeks orders that the appeal be dismissed as incompetent and that the applicant pay the respondent's costs.

2 On 14 August 2003 Phipps FM dismissed the applicant's application for review of a decision of the Refugee Review Tribunal given on 4 February 2002. On 2 September 2003 the applicant filed a notice of appeal in the Federal Court from the decision of Phipps FM. On 10 December 2003, Goldberg J ordered that the appeal be dismissed with costs. His Honour was exercising the appellate jurisdiction of the Federal Court. On 7 January 2004 the appellant filed a document purporting to be a notice of appeal which attempted to appeal against the judgment of Goldberg J. The motion presently before the court raises the issue of whether the proceeding filed on 7 January 2004 is a competent proceeding before the Court.

3 Ms Hearn-Mackinnon, who appeared on behalf of the respondent, submitted that the appeal should be dismissed as incompetent. She relied on s 24(1AAA) of the Federal Court of Australia Act 1976 (Cth). That section provides:

‘An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the court in relation to an appeal from the Federal Magistrates Court.’

4 Ms Hearn-Mackinnon contended that the section was clearly applicable to the circumstances of this case, with the result that the appeal cannot be brought in this Court. The applicant was self-represented. He was, however, assisted by a Sinhalese interpreter. He was not able to point to any argument against the operation of section 24(1AAA). Rather he suggested that the argument about section 24(1AAA) was not known to him before today.

5 In the circumstances of this case, even if we were to accept the matters relied upon by the applicant, they would only bear upon the question of costs of this application. This is because the terms of section 24(1AAA) are clear beyond argument. The system provided under the Act in relation to appeals from the Federal Magistrates Court in such matters is that there is one opportunity to appeal, either to a Full Court of three judges or, in the alternative, to a single judge of the Court exercising appellate jurisdiction. It was the latter course which applied to the present proceeding.

6 The Court would ordinarily order that the unsuccessful applicant pay the costs of this application. The applicant ultimately agreed that he had been advised before today's hearing by the solicitor for the respondent that the appeal had been brought in the wrong court, and that he should get independent legal advice. We accept Ms Hearn-Mackinnon's assertion that she gave the applicant the phone number of the Asylum Seeker Resource Centre, and that the gist of the application and the need for independent advice was conveyed to the applicant in a letter dated 22 January 2004, and in two telephone calls between Ms Hearn-Mackinnon and the applicant.

7 Consequently, the ordinary rule that costs follow the event should apply. The purported appeal must be dismissed as incompetent, and the applicant must pay the respondent's costs of this application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated: 7 May 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms Rea Hearn-Mackinnon
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13 February 2004
Date of Judgment:	13 February 2004