MZWOA v Minister for Immigration - [2005] FMCA 711

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWOA v MINISTER FOR IMMIGRATION

[2005] FMCA 711

MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error.

PRACTICE AND PROCEDURE – Non-appearance of Applicant – preference to make final orders pursuant to Rule 13.03A(d) of the Federal MagistratesCourt Rules 2001.

Federal Magistrates Court Rules 2001, r.13.03A

Applicant:

MZWOA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 853 of 2004

Delivered on:

24 May 2005

Delivered at:

Melbourne

Hearing Date:

24 May 2005

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

No appearance

Counsel for the Respondent:

Ms J. Macdonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 29 June 2004 be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 853 of 2004

MZWOA

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed on 29 June 2004, seeking judicial review of a decision of the Refugee Review Tribunal made on 22 April 2004. In its decision the RRT had affirmed a decision of a delegate not to grant to the applicant a protection visa.
The application refers to the applicant and an address of the applicant at Kingsville Street Yarraville (the Yarraville address). However, on the third page of the application, under the heading The Applicant's Address for Service, the following address appears: “suite 103,

144-148 Nicholson Street, Footscray” (the Footscray address).
There is nothing on the application to indicate that at that time there were solicitors acting for and on behalf of the applicant, though the court notes from the court book at page 59 in this matter that the law firm of Toferu, M. Habib, lists as its address the Footscray address.
The application was the subject of directions before a Registrar of the Court on 20 October 2004. Directions made on that date included that the applicant file and serve an amended application, supplementary court book if any, and contentions of fact and law. Those documents should have been filed prior to the end of 2004. No documents have been filed for and on behalf of the applicant, in accordance with those directions.
The court file reveals that on 20 October 2004 Mr Belbruno purportedly appeared for and on behalf of the applicant. There is nothing on the file to indicate that Mr Belbruno at any time had advised the court that he was acting for and on behalf of the applicant.
There is no notice of address for service provided and none filed, yet on 21 January 2005 Mr Belbruno has filed a notice of withdrawal of practitioner, where he asserts that his firm no longer acts on behalf of the applicant. He then provides, as the last known address for service of the applicant, the Yarraville address.
For reasons that are not readily apparent, it would seem - and

I conclude - that due to perhaps an administrative error made in registry or otherwise, the application was not included in the list of matters to be heard and determined by the court, as scheduled by the Registrar, on 2 March 2005.
The court file reveals that on that date an amended notice of listing was forwarded to the parties, with the amended notice being forwarded to the Footscray address for the applicant; that is, the address for service which was validly relied upon. That amended notice of listing provided a notice to the parties that the matter was to be listed this day and that the 2 March 2005 hearing date had been vacated.
Noting the various addresses, the deputy associate then on Friday, 20 May 2005, forwarded a further amended notice of listing to the applicant and this time referred to the Yarraville address. That letter,

I am satisfied, was forwarded by express post, which would mean that it would be received by the applicant yesterday.
The court expressed some concern about the confusion over the address, but following through the chain of events as indicated, it seems clear to me that although an earlier notice of listing for 2 March 2005 appears on the file addressed to Mr Belbruno, that he in fact did not at any stage provide a notice of address for service.
This is not the first time that the solicitor Mr Belbruno, and indeed the other solicitor Mr Habib, by their conduct, have caused some confusion in relation to the address for service of an applicant. The proper course for solicitors to follow is to ensure that their name and address is correctly inserted on an application. By simply providing a solicitor's address as address for service without reference to the solicitor can only create confusion. By subsequently appearing without having filed a notice of address and then further filing a notice of withdrawal of practitioner then that of itself can only lead to further confusion.
Nevertheless, and having traced through the chronology of events, I am satisfied that at all relevant times this applicant has had reasonable notice of these proceedings and certainly, at least in relation to the last correspondence forwarded by express post, ought to have been aware that this matter was listed this day.
One option the court considered was to simply adjourn the matter to another date and provide a further notice of listing to the applicant.

A second option was to simply dismiss the application pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 and in particular under Rule 13.03A(c).
A third option is to proceed with the hearing generally in relation to the claim for relief in the proceeding, pursuant to Rule 13.03A(d). The last of those options has been urged upon me by the respondent, on the basis that in this instance the address for service is the address to which at least notices have been sent in the past, and in any event that the last document served upon the applicant was addressed to the alternate address.
In all the circumstances and for reasons which will become apparent, it seems preferable in my view that the court ought to proceed as requested by the respondent; to deal with the hearing generally and make final orders, albeit in the absence of the applicant where the applicant has not appeared.
One of the significant factors in considering whether to proceed to make a final order in this matter is the possibility that upon application being made to set aside this decision and this order, pursuant to rule 16.05, it may be arguable that res judicata, issue estoppel or Anshun estoppel should apply. I leave that as an option, without finally determining whether indeed it will apply, as that will no doubt be a matter for another court to consider on the appropriate material.
A second factor, however, which persuades me to proceed to deal with the matter generally and make a final order, is what I would regard as the lack of any merit in this application, based upon the material currently before the court. A third matter which I take into account is that the applicant, despite being invited to attend an RRT hearing, did not attend the hearing.
Taking all those factors into account, it is appropriate that I briefly consider this application and make a final order, as I have indicated, pursuant to Rule 13.03A(d) of the rules.
The applicant is a citizen of Trinidad and Tobago, who arrived in Australia from Canada on 21 April 1997 and departed Australia for Canada on 12 January 1998. The applicant again arrived in Australia on 7 November 1998, on a long stay tourist visa issued in Washington on 28 April 1998. The visa was extended until 11 November 1999.
On February 2003 the applicant lodged an application for a protection visa. As I indicated earlier, a delegate of the minister refused the application for a protection visa on 7 November 2003, and the RRT affirmed that decision not to grant a protection visa.
The applicant's claim was that she was a person to whom Australia has protection obligations. It is noted, as I indicated earlier in this judgment, that the applicant in fact chose not to attend the hearing of the RRT.
The RRT set out the claims of the applicant in the decision and noted that the applicant had lived and worked in Port of Spain in Trinidad until 1997 when she first came to Australia. Members of her family remain in Trinidad. It further noted that in 1990 there was religious tension in Trinidad, and Muslims tried to take over the country. The applicant is a member of a Christian young organisation and her life was in danger. The Muslims killed many of the members of her organisation and attempted to kill her.
In reaching its decision that it was not satisfied the applicant had a well‑founded fear of persecution within the meaning of the convention, the tribunal noted the general nature of the claims made by the applicant. It noted otherwise the chronology of events and other evidence, which ultimately it concluded was insufficient to establish facts sought to be relied upon by the applicant.
It is not necessary for me to otherwise consider the reasoning of the RRT, save and except that it seems in my view to have properly considered the claim as put before it by the applicant and despite the absence of the applicant, in all the circumstances I am satisfied as a matter of law that it was entitled to proceed to hear and determine the application.
Having heard and determined the application in the absence of the applicant, it did so in a manner which in my view was free of jurisdictional error. Given that there is in fact no jurisdictional error, for the sake of completeness it is clear that this application would appear to be out of time.
In any event, I am further satisfied that there is no error of a kind which would attract judicial review in this application. Accordingly, it follows that the application itself appears to be entirely without merit.
I should note in passing that although the statement of grounds in the application refer to a failure to observe proper procedures or that the tribunal exceeded its jurisdiction, I am satisfied and accept the submissions made for and on behalf of the respondent that there is no substance in either of those grounds. Accordingly, it follows the application should be dismissed with costs.
I direct that a sealed copy of this order and the reasons for judgment as revised, be forwarded to the applicant care of the two addresses to which I have referred to in this decision.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 24 May 2005