MZWFV v Minister for Immigration - [2005] FMCA 1479

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWFV v MINISTER FOR IMMIGRATION

[2005] FMCA 1479

MIGRATION – Review of RRT decision – application to set aside order dismissing proceedings for non–attendance – basis for setting aside – reason for non-attendance – application to set aside dismissed.

Migration Act 1958 s.474
Federal Magistrates Court Rules 2001 r.16.05

Applicant:

MZWFV

Respondent:

MINISTER FOR IMMIGRATION

File Number:

MLG453 of 2004

Judgment of:

O’Dwyer FM

Hearing date:

15 July 2005

Delivered at:

Melbourne

Delivered on:

15 July 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr T. Mosby

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application filed on 30 June 2005, which application was taken to be an application under Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001, be dismissed.
That the Applicant pay the Respondent's costs fixed in the sum of $600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG453 of 2004

MZWFV

Applicant

And

MINISTER FOR IMMIGRATION

Respondent

REASONS FOR JUDGMENT

(ex tempore)

This application was filed on 20 June 2005 and in it the Applicant sought orders to the effect that the Refugee Review Tribunal decision of 8 April 2004 be set aside. For the reasons set out below the orders sought in the application are inappropriate and obviously in error.
It is to be noted that there is a history to this application as follows. The applicant filed an earlier application for review on 30 April 2004 in respect of the decision of the Refugee Review Tribunal (the Tribunal) which was handed down on 8 April 2004. That application came on for hearing on 18 November 2004, but the Applicant failed to attend and it was dismissed because of the non‑attendance of the Applicant.
In response to my order of 18 November 2004, the applicant on

7 December 2004 filed an appeal in the Federal Court. That appeal was dismissed on 15 June 2005 by his Honour North J on the basis that it was incompetent. The reason why it was incompetent was that the Applicant had chosen the wrong course of action in response to my orders of 18 November 2004.
The proper course of action for the applicant was to make an application under r.16.05(2)(a) of the Federal Magistrate Court Rules 2001. His Honour North J effectively sent the applicant back to this court to make such an application. Rule 16.05(2)(a) provides, in effect, that when an order is made in the absence of a party, this court can set it aside. However, in error, the Applicant filed another application for review of the Tribunal’s decision.
As stated earlier, the application filed on 20 June 2005 is not expressed in the terms of an application under rule 16.05(2)(a). In my view, however, that failure is reflective of the fact that the applicant is not represented by a legally qualified person. It would be an injustice to the applicant to punish him for a lack of understanding of the process in these circumstances and I have taken the view that the application filed on 20 June 2005 should be considered an application under the rule.
The rule allowing me to set aside an order made in the absence of a party is a discretionary rule. The elements to be considered by me in the exercise of that discretion are as follows:
a)whether the applicant can offer a reasonable explanation for the non–attendance;
b)whether the application to set aside is made within a reasonable time of the applicant becoming aware of my decision; and
c)whether on the face of the material, the applicant appears to have an arguable case should it proceed to a further hearing in respect of the substantive issues before the Court.
I am satisfied that the appeal lodged in the Federal Court should be seen, in the context of this proceeding, as an application to set aside under the rules as far as determining whether the applicant has acted within a reasonable time. The hearing being on 18 November 2004 and the appeal being lodged on 7 December 2004, in my view, is indicative of the applicant acting within a reasonable time. The real issues, therefore, in respect to the exercise of my discretion are the remaining two elements; namely whether there is a reasonable excuse and whether there is a prospect of success.
In respect of the reasonable excuse, the applicant has informed the court that two days prior to the hearing he had a fall that injured his back. The fall was so severe as to render him incapable of attending court on 18 November 2004. Indeed, it was so severe that he was bedridden for a period of two weeks. The applicant acknowledges that he was aware of the hearing on 18 November 2004. He has informed the Court that he instructed a housemate to advise the Court of his inability to attend. He says the housemate made contact with a lady at the Court who informed the friend that everything would be okay.
I do not have the benefit of any statements or affidavits from the friend to verify that contact, and there is no reference on the file to any contact having been made. In respect to the nature of the injury, there is no medical evidence presented to the Court in support of that.

The reason proffered for that is the applicant has no money and he does not qualify for a medicare card.
His lack of money is as a consequence of restrictions preventing him from working and he survives on the good will of friends in whose house he resides. He depends on his friends to also provide him with food, as well as accommodation. In return for their generosity he assists as best he can within the household by doing such things as cooking and any other necessary chores to help.
The end consequence, however, is that there is no evidence before me that independently verifies the statements made by the applicant about his medical condition or about his inability to attend Court on the day. There are no affidavits from any of his flatmates verifying his circumstances and the only evidence I have is that of the applicant.

Because of the lack of any corroborative evidence, on balance, I am not satisfied that the applicant had a reasonable excuse for not attending on 18 November 2004.
In any event, in respect of the substantive application before the Court, I am not satisfied that the applicant has any prospect of success should the matter be reinstated. It is evident from the Contentions of Fact and Law filed by the applicant and his statements made here from the bar table today that he seeks, in effect, an impermissible merits review of the Tribunal’s decision.
I have critically read the Tribunal’s decision, as well as the applicant’s Contentions of Fact and Law, in an attempt to discern any jurisdictional error on the part of the Tribunal. I have been unable to find any. I have also read the respondent’s Contentions of Fact and Law, and in my view they express the correct law and the correct application of that law to the facts of this case. I accept and adopt the contentions of the respondent in these regards.
As the Tribunal’s decision is a privative clause decision, it is afforded protection under s.474 of the Migration Act1958 unless it can be shown that the decision is affected by jurisdictional error. As I have said, there is, on the face of it, no jurisdictional error, and in my view there is no prospect of the applicant being successful should the matter be reinstated.
In conclusion, therefore, I am not disposed to exercise my discretion to set aside my previous order because I find that there has not been a reasonable excuse given for the non‑attendance and the prospect of success, should the application be reinstated, is non‑existent.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate:

Date: 15 July 2005