VOAQ v Minister for Immigration & Multicultural & Indigenous Affairs

8 The Court file does not contain the customary letter informing the applicant of the directions hearing on 9 May 2005. The application for an extension of time to review the Registrar's decision was not opposed, and I will grant it. However the application for leave to review the decision, it being an interlocutory order, was opposed. 9 If the Registrar's order were set aside, the extant proceeding in this Court would be the "notice of appeal" from the Chief Federal Magistrate's order dismissing, for want of appearance, the application in that court for review of the Minister's decision. No leave has been obtained to mount that appeal. The other extant proceeding is the application in the Federal Magistrates Court made on 17 September 2004 to set aside the Chief Federal Magistrate's order under Order 16 rule 5 of that Court's Rules. 10 The suggestion made in the Minister's solicitors' letters of 17 August (see [3]) and 8 September 2004 (see [4]) was soundly based, and was in fact acted on. A little less than a week after the second letter would have reached Mr Belbruno, the minutes of order proposed by the Minister's solicitors were signed. They have since been set aside, but for present purposes nothing turns on that. One day after the signing of the minutes, Mr Belbruno acted on the solicitors' suggestion. He filed an appearance in the Federal Magistrates Court stating that he "now acts on behalf of the Applicant", and filed an application to set aside the Chief Federal Magistrate's order. That was plainly the appropriate course to adopt: dispose of the proceeding in this Court and apply in the Federal Magistrates Court under Order 16 rule 5 of the Rules of that Court. Apart from the common sense of approaching the court that made the order of dismissal for non‑appearance in order to have it set aside, it may very much be doubted that this Court has jurisdiction to entertain an appeal against such an order. See Brown v Fraser (1896) 22 VLR 22; Crotty v Clarke (1896) 22 VLR 594; Adams v Cronin (Victorian Court of Appeal, 6 September 1996); MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 and MZWFV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 923. I need not decide that question, because the preferable course is for the applicant to pursue the Order 16 rule 5 application. In those circumstances, in the exercise of my discretion I will not grant leave to review the Registrar's decision. 11 Although the point was not raised by the applicant, there may be a question as to the power of the Registrar to make the order of 9 May 2005 striking out the application. See s 25(2B)(bb)(ii) of the Federal Court of Australia Act. In the absence of submissions on the issue, I will not decide the point. If the Registrar had power, what I have said at [10] applies. If the Registrar did not have power, and if that is a jurisdictional deficiency that deprives me of the discretion to refuse an extension of time or leave to review the decision, I would have refused leave to appeal from the Chief Federal Magistrate's decision of 27 May 2004 and struck out the so‑called "notice of appeal" as incompetent. So the practical result would be the same whether or not the Registrar had power to strike out what he treated as an "application". I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

[2005] FCA 923