Mahmud, Munshi Reaj v Minister for Immigration & Multicultural Affairs

[1998] FCA 1524

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 688  of   1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MUNSHI REAJ MAHMUD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:		MOORE, MANSFIELD, EMMETT JJ
DATE OF ORDER:		6 NOVEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 688 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MUNSHI REAJ MAHMUD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	MOORE, MANSFIELD, EMMETT JJ
DATE:	6 NOVEMBER 1998
PLACE:	SYDNEY

MOORE J

EX TEMPORE REASONS FOR JUDGMENT

This is a notice of motion brought by the Minister for Immigration and Multicultural Affairs (“the Minister”), the respondent to this appeal, seeking to have the appeal dismissed for want of prosecution.

The notice of appeal was filed by the appellant, Munshi Reaj Mahmud, on 9 July 1998.  The appeal is against a judgment of Beaumont J of 19 June 1998.  The appeal came on for call-over in this Court on 27 July 1998 and the appellant failed to appear.  The 27 August 1998 was determined as the date for the settlement of the appeal index.  However the appeal index was not then settled because the appellant was apparently ill and did not attend.  A further date was set for the settlement of the appeal book, 6 October 1998, though again the appellant did not appear.  The position remains that there is no appeal index and no appeal book.

The solicitors for the Minister, the Australian Government Solicitor, have on several occasions advised the appellant in writing that the appeal was fixed for hearing this morning.  No steps have been taken by the appellant to prosecute the appeal and there is no appearance today.  The only explanation proffered by the appellant is in a letter written to the Australian Government Solicitor indicating that he is ill and unable to attend.  That is a matter to which I will return shortly.

The appellant has been made aware of the Minister’s notice of motion seeking to have this appeal dismissed.  So much can be inferred from a letter of 16 October 1998 written by the appellant to the Australian Government Solicitor indicating that earlier correspondence from the Australian Government Solicitor had been received by him.  I infer that that includes an earlier letter enclosing the notice of motion and affidavit in support.

Before considering the notice of motion it is necessary to say something about the judgment against which the appellant brings this appeal.  The judgment of Beaumont J dealt with an application for judicial review of a decision of the Immigration Review Tribunal (‘the Tribunal”).  The issue before the Tribunal concerned an application that the appellant had made for the extension of a business short stay visa.  The appellant arrived in Australia on 2 December 1996 and was given a business short stay visa.  The visa expired on 3 March 1997 though it was extended to 3 June 1997.  A further extension was sought but it was refused by a decision of the delegate of the Minister on 24 July 1997.  An internal review of that refusal was sought, though in due course the review officer affirmed the delegate's decision to refuse the extension on 27 October 1997.  The appellant then applied for a review of that decision by the Tribunal.  On 13 March 1998 the Tribunal affirmed the earlier decision to refuse to extend the visa for the second time.  I have read the reasons for judgment of Beaumont J.  The basis upon which his Honour rejected the application for judicial review is, in my opinion, unexceptionable. 

The explanation given by the appellant for not appearing today is that he is sick.  To the extent that there is material before the court as to the nature of the illness, it is a medical certificate dated 4 November 1998 which indicates that the appellant is suffering from muscular pain and anxiety.  The appellant characterised, in correspondence, his medical condition as one that involves physical and mental illness and he indicated in a letter of 4 November 1998 to the Australian Government Solicitor that he wished to have investigations undertaken of his illness.  For my part I am somewhat sceptical about whether the illness identified in the medical certificate is of a character that would preclude the appellant appearing today, even if only for the purpose of seeking an adjournment of the appeal.

However, even accepting that the illness is of a character that would have precluded him appearing for that purpose, in my view, having regard to the subject matter of the decision of the trial judge, namely a contest about whether a visa which effectively expired in June 1997 should have been extended by a further three months, the subject matter of the appeal is such as to indicate that the appellant would need to provide cogent evidence to resist the application that is presently made by the Minister.  Moreover, as I earlier said, the reasons of Beaumont J appear to me to be unexceptionable. 

For those reasons I would make the order sought in the notice of motion and dismiss the appeal for want of prosecution. 

I order that the appeal is dismissed and that the appellant pay the respondent's costs. 

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:             6 November 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 688 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MUNSHI REAJ MAHMUD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	MOORE, MANSFIELD, EMMETT JJ
DATE:	6 NOVEMBER 1998
PLACE:	SYDNEY

MANSFIELD J

EX TEMPORE REASONS FOR JUDGMENT

I agree with the reasons for the decision of Moore J and the orders he proposes.

I certify that page is a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield

Associate:

Dated:             6 November 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 688 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MUNSHI REAJ MAHMUD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	MOORE, MANSFIELD, EMMETT JJ
DATE:	6 NOVEMBER 1998
PLACE:	SYDNEY

EMMETT J

EX TEMPORE REASONS FOR JUDGMENT

I also agree with the reasons and the orders proposed.  I simply add that the only evidence being produced to us is a facsimile copy of a medical certificate.  There is no indication that the medical practitioner was aware of the nature of the hearing or what that involved.  Accordingly, I would give absolutely no weight to the certificate in those terms.  I agree with the orders proposed and the reasons for them.

I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:
Dated:             6 November 1998

Counsel for the Respondent:	Mr D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 November 1998
Date of Judgment:	6 November 1998