MZAFP v Minister for Immigration and Border Protection
[2015] FCA 863
•17 August 2015
FEDERAL COURT OF AUSTRALIA
MZAFP v Minister for Immigration and Border Protection [2015] FCA 863
Citation: MZAFP v Minister for Immigration and Border Protection [2015] FCA 863 Appeal from: MZAFP v Minister for Immigration and Anor [2015] FCCA 954 Parties: MZAFP v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 171 of 2015 Judge: MURPHY J Date of judgment: 17 August 2015 Legislation: Federal Court of Australia Act 1976 (Cth), ss 25(2B0(bb), 37M
Federal Court Rules 2011 (Cth), r 36.75Cases cited: MZAFP v Minister for Immigration & Anor [2015] FCCA 954 Date of hearing: 17 August 2015 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant did not appear Counsel for the Respondents: Mr T Goodwin Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 171 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZAFP
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
17 AUGUST 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 171 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZAFP
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MURPHY J
DATE:
17 AUGUST 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT (revised from transcript)
INTRODUCTION
In this matter the appellant appeals from a decision of the Federal Circuit Court dated 10 March 2015 dismissing his application for judicial review in relation to a decision of the second respondent, the Refugee Review Tribunal (“Tribunal”) (MZAFP v Minister for Immigration & Anor [2015] FCCA 954).
The application to the Federal Circuit Court sought review of a decision of the Tribunal dated 15 May 2014 in which it affirmed the a decision of a delegate of the Minister for Immigration and Border Protection’s (“Minister”) dated 7 December 2012 refusing to grant the appellant a Protection (Class XA) visa (“the visa”).
THE APPELLANT’S NON-APPEARANCE
The Notice of Appeal filed by the appellant dated 31 March 2015 stated that the Court will make orders for the conduct of the proceeding, and that if the appellant or his lawyer did not attend in the Court may make orders in his absence. On 28 April 2015 the National Appeals Registrar wrote to the appellant at the postal address provided in the Notice of Appeal informing him that it was anticipated that the Court would hear the appeal during the sitting period 3-25 August 2015. Attached to the letter was a copy of directions made by Registrar Josan on 28 April 2015 which included a direction that he file and serve a written outline of submissions no later than 10 business days before the hearing date fixed.
On 29 June 2015 the National Appeals Registrar wrote to the appellant at the same postal address, and emailed him at the email address provided in the Notice of Appeal, informing him that the appeal was listed to be heard before me on Monday, 17 August 2015 at 10:15 am at this Court’s address.
Further, counsel for the Minister informed the Court that his instructors had written to the appellant on 27 July 2015 to provide a copy of the Appeal Book, in which letter they confirmed that the appeal was listed to be heard on 17 August 2015 at 10:15 am.
The appellant did not file his submissions in accordance with the directions made on 28 April 2015.
The matter came on for hearing this morning as scheduled at 10.15 am. There was no appearance by the appellant when the matter was called for hearing inside and outside the Court. I stood the matter down until 10.45 am and requested that the solicitors for the Minister telephone the appellant on the telephone number provided in the Notice of Appeal.
At 10.45 am the appellant again did not appear when the matter was called inside and outside the Court. Counsel for the Minister informed the Court, and I accept, that during the adjournment his instructors had telephoned the appellant four times on the telephone number provided but that it had rung out. Counsel also informed the Court, and I accept, that the Minister’s solicitors had not been contacted by the appellant in relation to his non-appearance.
In reliance on the non-appearance of the appellant the Minister applies to dismiss the application pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) (“FCA”). That provision relevantly states:
A single Judge (sitting in Chambers or in open court) or a Full Court may:
(bb) make an order that an appeal to the Court be dismissed for:
…(ii) failure of the appellant to attend a hearing relating to the appeal; …
The Minister also relies on r 36.75 of the Federal Court Rules 2011 (Cth) (“the Rules”). Rule 36.75 relevantly states:
(1)If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:
(a) if the absent party is the appellant:
(i) the appeal be dismissed;
…Given the appellant’s non-appearance I have dismissed the appeal pursuant to s 25(2B)(bb)(ii) of the FCA and under the Rules. I have had regard to s 37M of the FCA which requires that the powers conferred on the Court be exercised in a way that best promotes the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. To adjourn the matter because of the appellant’s non-appearance would have been contrary to s 37M. This is especially so given the matter is an appeal against the finding of another court and the appeal lacks properly articulated grounds.
My decision to dismiss the appeal turns on the appellant’s failure to attend the hearing, but I am reinforced in my view because the appeal appears to have had little prospect of success. The Notice of Appeal alleges only that the appellant was denied procedural fairness and was not treated fairly. Other than this bald assertion the appellant made no attempt to particularise the alleged failure to accord him procedural fairness and did not otherwise identify any appealable error in the Federal Circuit Court decision. The appellant did not comply with the direction to file written submissions and the Court is in the dark as to the nature of the alleged absence of procedural fairness.
It is though possible to obtain some insight in to what may have been the appellant’s submissions by perusing the appeal to the Federal Circuit Court. In that case the appellant alleged that the Tribunal denied him procedural fairness because it did not give him a fair hearing, failed to properly consider all of his claims and did not give him an opportunity to comment on an issue that was in dispute. However, the written submissions handed up by the appellant really made complaints about the merits of the decision rather than an absence of procedural fairness.
The learned Federal Circuit Court judge held that the Tribunal decision was based in its rejection of the appellant’s evidence in relation to his claims and on country information. Although I am not aided in my assessment by any proper specification of the alleged absence of procedural fairness, it appears from the Tribunal’s decision that it properly undertook its statutory task in considering the claims of the appellant and rejecting them for the reasons it did. The Tribunal rejected the appellant’s evidence regarding the threatening phone calls he said he had received, that he was shot at because of his senior position in Mohajir Quami Movement – Haqiqi (“MQM-H”), that he had been harassed by members of MQM-H and that the appellant’s brother’s serious injuries resulted from the appellant’s decision to decrease his involvement with MQM-H. Based on the view it took of the appellant’s evidence and country information the Tribunal found that the appellant himself did not have a profile that would mean he would fear harm from either the MQM-H or the Muttahida Quami Mahaz Altaf, which was the central basis of his assertion of a well-founded fear of persecution. The Tribunal’s findings do not appear to be unreasonable, illogical or irrational and they appear to be based upon facts that have some weight.
The learned Federal Circuit Court judge saw no jurisdictional error in the Tribunal’s decision, and I can discern no appealable error in his Honour’s decision in that regard.
It is unnecessary for me to deal with the second basis for the Tribunal’s decision which related to the ability of the appellant to relocate internally in Pakistan.
In the circumstances I have dismissed the appeal and ordered the appellant to pay the first respondent’s costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 17 August 2015
0