MZYIZ v Minister for Immigration and Citizenship

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: a) 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.