M1 of 2004 v Minister for Immigration - [2005] FMCA 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M1 of 2004 v MINISTER FOR IMMIGRATION

[2005] FMCA 271

MIGRATION – Practice and Procedure – application for re-instatement –whether adequate explanation for non-appearance – whether arguable case – application refused.

Applicant:

APPLICANT M1 of 2004

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 1353 of 2004

Delivered on:

1 March 2005

Delivered at:

Melbourne

Hearing Date:

1 March 2005

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Ms S. Weavers

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application for reinstatement filed 21 February 2005 be dismissed.
The Applicant shall pay the Respondent's costs fixed in the sum of $600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1353 of 2004

APPLICANT M1 of 2004

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the applicant, by an application filed on 21 February 2005, seeks to reinstate an application which this court had dismissed on 16 February 2005 pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001. The application for reinstatement, though filed on 21 February 2005, was not served upon the respondent, though the respondent’s solicitor appears and does not oppose the application being heard and determined this day.
The applicant, in support of the application for reinstatement, relies upon an affidavit sworn by him on 21 February 2005. Although requiring the assistance of an interpreter, who is present before the court this day, and despite requiring the assistance of an interpreter before the Refugee Review Tribunal (the RRT) the applicant has indicated that the affidavit, though not interpreted, was read to him by a friend so that he could understand the contents of it and he signed it accordingly. I am prepared, in the circumstances, to permit the applicant to rely upon the affidavit in support of the application and do so noting that a copy of the affidavit and application were not served upon the respondent though the respondent, sensibly and appropriately in my view, has conceded that the matter should be permitted to proceed this day with the applicant relying on the affidavit.
The affidavit is very short. It states the following:
“My migration agent, Mr Nihaq Gunatilake told me I did not have to attend court on 16th Feb.
He was not in Australia on 16th Feb, having gone to Sri Lanka.

I received a call from the court asking me to come to court. I was not at home. I got the message at about 12 pm.”
I read the reference to “12” to be “12 midday”. It is clear in this matter that a notice of hearing had been forwarded to the parties in relation to these proceedings. That notice of hearing was forwarded to the parties on or about 29 October 2004. Both parties, by notice of listing dated in fact 29 October 2004, were advised that the matter would be listed for hearing on 16 February 2005 at 10.15 am. On that date there was no appearance for the applicant and counsel appeared for the respondent and I made the orders to which I referred earlier. The respondent opposes the application for reinstatement and does so on the basis that there is an inadequate explanation or basis provided upon which this court could conclude that there were reasonable grounds to reinstate the application and further relies upon a submission, based largely on the respondent's contentions of fact and law, that in any event there is no arguable case as no jurisdictional error has been demonstrated by the applicant in support of the application.
It is perhaps useful to set out by way of background the fact that the applicant is a citizen of Sri Lanka who arrived in Australia on 6 January 2003. On 7 January 2003 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 21 February 2003 a delegate refused to grant the protection visa and the applicant then made an application on 25 July 2003 to the RRT for a review of the delegate's decision. On

5 December 2003 the RRT pronounced its decision, dated

13 November 2003, affirming the delegate's decision not to grant a protection visa. On 29 January 2004 the applicant filed with the High Court an affidavit which annexed a draft order nisi. Those proceedings, by order of the High Court on 26 February 2004, were remitted to the Federal Court of Australia. The Federal Court of Australia transferred the matter to this court and, as I have indicated, it was listed for hearing before this court on 16 February 2005.
The applicant in the substantive application has relied upon contentions of fact and law filed in the Federal Court on 5 August 2004 which annexed certain documents relating to country information. The respondent has relied upon facts and contentions dated 13 October 2004. In general terms it would appear that the applicant has relied upon jurisdictional error in support of the order nisi and the application before this court, although I note that there is also a reference to the decision being made in ‘bad faith’.
It is appropriate in an application for reinstatement to first consider whether or not there is any proper basis upon which it could be concluded that the application should be reinstated. In the exercise of the court's discretion the court needs to be satisfied that there is some adequate reason provided for the non‑attendance by the applicant on the scheduled date for hearing. It is clear in my view on a proper consideration of the chronology of events that the applicant had received notice of this hearing as far back as October 2004. He has indicated from the Bar Table that he was told by his then migration agent that all the material that was relevant had been placed before the court and he need not attend. It is difficult to determine the date when he received that advice, though I conclude that it was shortly after the notice of listing had been received. In any event it appears the migration agent is no longer in Australia and in any event there is nothing before me to suggest that the migration agent would have appeared or sought to appear to assist the applicant in this application. Of course as of right the migration agent has no standing to appear as an advocate in this court though does have the ability to appear, as he did, before the RRT.
On my assessment of the affidavit in support of the application for reinstatement I am not satisfied that it provides a proper basis upon which this court should conclude that there is a reasonable explanation provided for the non‑attendance of the applicant at court on 16 February 2005. Although the applicant has stated from the Bar Table that he had a medical appointment that day there is no other evidence in relation to that and in any event on the material before me I am not satisfied that there is any or any sufficient evidence provided which would support the reinstatement or provide, as I indicate, a proper basis for the application to be reinstated.
If I am wrong in that conclusion then on a proper reading of the material it seems to me that on any assessment of the RRT decision it had embarked upon a fact‑finding mission and drawn conclusions about the application which were reasonably open to the RRT. I do not see any error of law and indeed do not see any jurisdictional error arising from the RRT's findings. Those findings of fact, though adverse to the applicant, were clearly findings which were reasonably open to the RRT. I do not see any basis upon which it could be concluded that there is jurisdictional error of a kind which would attract judicial review of this application or which would lead to a favourable outcome in relation to the order nisi.
It would otherwise be appropriate, if I were dealing with the substantive issues, to reject the application by the applicant and to make a formal order that the order nisi be refused. If I were dealing with the substantive application I would likewise conclude that it should be dismissed on the basis that there is no jurisdictional error disclosed. There is simply no evidence before me to support any assertion of actual bias and I note further that in the material a suggestion was made that the decision of the RRT had been induced or affected by fraud or actual bias. They are significant allegations with a very high threshold to be achieved in proving those allegations. In this case there is simply no material which would provide a basis upon which the court would draw an adverse conclusion of that kind as sought by the applicant. Otherwise in my view there does not appear on the material before me to be any jurisdictional error or error of a kind which would entitle this court to draw a conclusion that the applicant should succeed in the application and further on the material before me I conclude that there is no arguable case.
Hence even if I were satisfied that there was a proper excuse given for the non‑attendance of the applicant before this court I am further satisfied that in all the circumstances there is no arguable case. It is clear to me that the contentions that the applicant effectively seeks to agitate factual issues and otherwise seeks to adduce further country information, which could and should have been provided by the applicant through his agent during the course of the hearing when an interpreter was available. Essentially what is sought to be agitated is a dispute on the facts and in the circumstances that is not of itself a sufficient basis upon which this court should entertain an application for judicial review.
Having concluded that there is no reasonable explanation for the non‑attendance and, further, in the event that I am in error in making that conclusion, having found there is no arguable case on the material before me it is appropriate that the order of the court be that the application for reinstatement filed 21 February 2005 be dismissed and that the applicant pay the respondent's costs, which I fix in the sum of $600.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 1 March 2005