MZWOQ v Minister for Immigration - [2005] FMCA 1168

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWOQ v MINISTER FOR IMMIGRATION

[2005] FMCA 1168

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

PRACTICE AND PROCEDURE – Application to set aside order made in absence of Applicant – Reinstatement – Rule 16.05 Federal Magistrates Court Rules – failure of Applicant to attend tribunal hearing and court hearing – no satisfactory explanation – Applicant absent – failure to make adequate arrangements for post – no forwarding address.

Federal Magistrates Court Rules 2001, Rule 16.05

Applicant:

MZWOQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 921 of 2004

Judgment of:

McInnis FM

Hearing date:

10 August 2005

Delivered at:

Melbourne

Delivered on:

10 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr R. Hamilton

Solicitors for the Applicant:

Goz Chambers Lawyers

Counsel for the Respondent:

Ms T Veschetti

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application for reinstatement filed 6 June 2005 be dismissed.
The Applicant shall pay the Respondent's costs fixed in the sum of $1,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 921 of 2004

MZWOQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for reinstatement, which I take to be an application made pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (the Rules).
The rule provides effectively that the court may vary or set aside its judgment or order after it has been entered if, amongst other things, the order is made in the absence of a party. Effectively, if the court were minded to exercise the discretion it has under that rule, then the matter would then presumably be reinstated.
In considering the issue of reinstatement of an application it is clear that the court has a discretion which must be exercised judicially. In the exercise of the discretion it is relevant to take into account explanations, if any, given by the applicant for non-appearance and to further consider other issues including the question of whether or not there is indeed what could properly be described as an arguable case.
The order which the applicant seeks to set aside was an order made by the court on 2 March 2005 where the court ordered as follows:
(1) The application be dismissed pursuant to rule 13.03A part C of the Federal Magistrates Court Rules 2001.
(2) The applicant shall pay the respondent's costs fixed in the sum of $5100.
The application in this court, that is, the substantive application, was filed on 15 July 2004. It sought review of a decision of the Refugee Review Tribunal (the Tribunal) dated 1 June 2004. The tribunal decision had affirmed a delegate's decision not to grant a protection visa to the applicant.
By way of background, the applicant is an Indian citizen who arrived in Australia on a temporary business visa on 30 November 2003. He lodged his application for a protection visa on 30 December 2003 and provided a statement in support wherein he claimed by reason of his political opinion as a supporter of the Manjlis Itheadul Muslimin party (MIM) and his Islamic faith there is a real chance that he would be persecuted by political rivals and Hindu fundamentalists if he returned to India in the foreseeable future. That application for a protection visa was refused by a delegate of the respondent on 9 January 2004. The applicant then lodged his application before the tribunal on 3 February 2004.
It is significant to note that in his application (referred to at page 26 of the court book, exhibit A), the applicant refers to himself as being the person who should be contacted and provided his own address, though has indicated throughout, at least the early stages of the tribunal procedure that he had been receiving advice from an agent who I take to be a migration agent. In any event, prior to any scheduled hearing by the tribunal it is clear from the court book and the evidence given this day by the applicant that he had received a letter dated 22 April 2004 from the tribunal notifying him of the hearing date of 25 May 2004, and significantly, stating as follows:
“The Tribunal has considered the material before it in relation to your application, but is unable to make a decision in your favour on this information alone.”
The applicant does not deny receiving that correspondence, though asserts in his evidence that upon receipt of that correspondence he conveyed it to his then agent and was advised that he did not need to attend the tribunal hearing. His behaviour, if he indeed received that advice, which I note has not been corroborated by either affidavit evidence or otherwise from the claimed migration agent, nevertheless is consistent with the next item which appears in the court book at page 50, namely a response to hearing invitation. In that document signed by the applicant and dated 10 May 2004 he indicates that it was his intention not to attend the hearing.
Again in evidence he indicates to this court that he did so on the then advice of his agent. Hence, it is not surprising that under the heading ‘Background’ in its decision the tribunal recites the history in the following terms:
On 22 April 2004 the tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 May 2004. On 11 May 2004 the applicant advised the tribunal in writing that he did not wish to give oral evidence and consented to the tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the tribunal.
The tribunal then goes on to consider the claims and evidence and refers to the outline of submissions which were attached to the protection visa application. It recites those details verbatim. In its findings and reasons after reciting briefly the background material the tribunal goes on to state the following:
“The Tribunal regards the claims by the applicant as being of such generality as to preclude any findings of fact.”
It then proceeds to deal briefly with the specific claims made by the applicant and otherwise addresses and identifies what could only be described as appropriate issues which it would have liked to have explored with the applicant had he attended the hearing. Ultimately the tribunal concludes that it is unable to make findings on the current evidence. It states that it had informed the applicant that it was unable to make a favourable decision on this evidence and states:-
“However, the applicant chose not to avail himself of the opportunity to provide evidence at a hearing. Under the circumstances the tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution within the meaning of the Convention.”
It is argued on behalf of the applicant in support of the application to set aside the order made in his absence that the court should have regard to the excuse advanced by the applicant and that his non-attendance at the tribunal could be explained by the advice he then received from the unnamed agent.
Further in support of this application and relying upon both the evidence before this court and an affidavit sworn by the applicant on 26 May 2005, the applicant claims that he was not aware that the final hearing date in this matter had been altered from 29 March 2005 to 2 March 2005. He claims that certain documents forwarded to him by the court were not received by him until after he returned from a trip to Sydney on 7 March 2005. He has given evidence that he departed for Sydney on 20 November 2004 and did not return to Melbourne until

7 March 2005. He returned to Melbourne to the same address that he had occupied prior to his departure in November 2004.
It is noted that his departure to Sydney on 20 November 2004 occurred just three days after a hearing in this court before a registrar which occurred on 17 November 2004. The applicant agrees that he attended the hearing unrepresented. He made a note of the orders that were then made by the registrar. Amongst those orders included orders that the applicant file and serve an amended application containing proper particulars of the grounds relied upon, if any, by 1 December 2004 and that the applicant file and serve a supplementary court book, if any, and contentions of fact and law by 15 December 2004. It is clear that on that occasion the hearing date was set for 29 March 2005. That hearing date was altered and an amended notice of listing was forwarded to the applicant care of his current address on 20 January 2005.
I add, for the sake of completeness, that an earlier notice of listing dated 25 November 2004 had been forwarded to the applicant at the same address notifying him of the original hearing date.
The applicant claims that those documents, including a sealed copy of the order made on 17 November 2004, was not received by him until he returned to his residence in Melbourne on 7 March 2005. When asked whether he made any arrangements for mail to be forwarded to him in Sydney the applicant indicated he did not do so and explained that this was because there is no responsible person available at the address. It is noted, however, that the mail forwarded to the applicant had at least reached the address and was still there waiting for him upon his return.
In his affidavit the applicant refers to his noncompliance with the orders made by the court on 17 November 2004. He claims that he was unable to comply with the directions due to his ignorance of court procedures and lack of ability to read and write English language. The only alternative he claims was for him to seek the assistance of a lawyer. He states:
“As I did not have enough money to engage a private lawyer,

I sought assistance from Victoria Legal Aid, but my application was not successful.”
No further details are given to the court about the date of the application, the date of the refusal, the date when the applicant decided to make application to Victoria Legal Aid. For present purposes, however, I accept that the application was not successful.
It is of significance that in his evidence before the court the applicant when asked whether he made any or any attempt to seek legal assistance during the period he was in Sydney, that is, from 20 November 2004 to 7 March 2005, he indicated he had not made any attempt to do so. Hence, upon his return to Melbourne, having not complied with the orders of the court made in November 2004, the applicant had left himself approximately three weeks in which to arrange representation and comply with orders which should have been complied with by the end of December 2004.
The court is then confronted in this application with a difficult situation where the applicant, I will accept, is a person who is not familiar with the English language, has required during the course of his evidence the assistance of an interpreter and is not a lawyer and until recently has not been represented. It is important to take all those matters into account and give due weight to them in considering this application. Likewise, I take those matters into account in considering the explanation advanced by the applicant as to the reason why he did not attend the tribunal hearing.
In considering the explanation for not attending court on the rescheduled hearing date of 2 March 2005 it is important, however, to take into account, in my view, the fact that the applicant made no arrangements whatsoever to ensure that mail was forwarded to him during his absence of what appears to be a period of approximately three and a half months. That, in my view, is a substantial absence, and the departure for Sydney occurred just three days after orders were made that the applicant should file and serve material by December 2004. No attempt was made by the applicant to seek an extension of that time or to otherwise make any contact, as I understand it, of either the respondent or the court.
It is argued on behalf of the applicant that he had no reason to suspect that the hearing date of 29 March would be altered and brought forward to 2 March 2005. If the chronology of events advanced on behalf of the applicant is correct, then of course that conclusion is a valid conclusion. However, the court needs to look at the reason why the applicant was not properly informed. The sole reason why the applicant was not informed, in my view, is his unwillingness or inability to make any or any proper arrangements for the forwarding of mail during a three and a half month absence from Melbourne which occurred just three days after the first directions hearing and continued up until a period of just approximately three weeks prior to the final hearing.
When applicants conduct themselves in that manner and fail to make any or any proper arrangements for the receipt of mail, then they do so at great risk. The issue I have to determine is whether or not that conduct itself disentitles the applicant from relying upon his own conduct in order to provide a reasonable excuse for his non-appearance on 2 March 2005. As a matter of principle, in my view, that conduct should not be used to the advantage of the applicant. It is his own conduct which has denied him the opportunity of being advised of the amended notice of listing, which I note was forwarded by a notice dated 20 January 2005. In other words, over two months' notice was given to the applicant of the amended notice of listing.
I also have regard to the fact that no attempt was made by the applicant during the three-month period to seek any or any appropriate legal advice and/or provide any or any appropriate explanation to the court for his noncompliance with orders which he at least heard and understood during the time he attended court on 17 November 2004.
Even if I am wrong in reaching that adverse conclusion, it remains for the court to consider the further issue of whether, in any event, it would be futile to set aside the order and effectively reinstate the application. In considering that issue it is relevant to have regard to the explanation given by the applicant for his non-attendance at the tribunal hearing. In my view, the uncorroborated reasons advanced by the applicant for his non-attendance before the tribunal hearing should be not relied upon in excusing the applicant from non-attendance before the tribunal. The invitation was clearly extended to the applicant. The applicant responded by indicating he did not wish to attend. I am satisfied that the tribunal in the circumstances has discharged any obligations it has in relation to inviting the applicant to attend a hearing, and perhaps more relevantly, notifying the applicant that it did not have material before it which would then enable it to make a decision in his favour.
It is very clear from the correspondence which the applicant received that at that point in time, having considered the material before it, the tribunal was unable to make a decision in his favour. In my view, it is appropriate to conclude that the applicant was well aware of the content of that letter, as he has demonstrated at least a capacity to understand sufficient English to understand that that is what the letter contained. Even if I am wrong about that conclusion, he certainly was receiving some advice from an agent, albeit he claims advice not to attend. Without corroboration I do not accept that conclusion is necessarily valid. In any event, I do not accept it as a proper explanation for his non-attendance before the tribunal.
In those circumstances, given the tribunal has discharged its obligations, it remains to consider whether or not there is any other proper basis upon which the decision of the tribunal should properly be the subject of judicial review. It is clear in this instance that the application by the applicant for judicial review of the decision does not of itself provide sufficient particulars which would, in any event, lead to a conclusion that there has been jurisdictional error on the part of the tribunal. It is also noteworthy that in the application filed on 15 July 2004 there is no reference made to the non-attendance of the applicant or indeed reasons for that non-attendance. In my view, on the material before me there is no arguable case that can be raised having regard to my conclusions in relation to the non-attendance of the applicant before the tribunal.
It follows there is no arguable case, so that even if I was satisfied that there was some reasonable explanation for the non-appearance of the applicant on 2 March 2005, I otherwise conclude that it would not be appropriate in the exercise of my discretion to set aside the order made on that date having regard to my conclusion that there is no arguable case and to set aside the order and reinstate the application would be futile. It follows for those reasons that the application for reinstatement filed 6 June 20054 should be dismissed with costs.
I direct that the reasons that I have just given be transcribed and upon review shall constitute my reasons for judgment in this matter.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 10 August 2005