MZWPG v Minister for Immigration &; Anor (No.2) - [2005] FMCA 1373

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWPG v MINISTER FOR IMMIGRATION &
ANOR (No.2)

[2005] FMCA 1373

MIGRATION – Protection visa.

PRACTICE AND PROCEDURE – Whether any basis to set aside order in absence of Applicant – Rule 16.05 of the Federal Magistrates Court Rules 2001 (the Rules) – principles to be applied – discretion – no mere formality – inadequate evidence – undated medical certificate – no arguable case – application refused – Appearance by solicitor without filing Notice of Appearance refused – pro bono distinguished from lawyer retained on ‘no fee’ basis – Part 12 of the Rules.

Federal Magistrates Court Rules 2001

MZWPG v Minister for Immigration & Anor [2005] FMCA 1059

Applicant:

MZWPG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 982 of 2004

Judgment of:

McInnis FM

Hearing date:

9 September 2005

Delivered at:

Melbourne

Delivered on:

9 September 2005

REPRESENTATION

Pro Bono Counsel for the Applicant:

Mr C. Weerakoon

Solicitor for the Respondent:

Ms F Dea

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed 10 August 2005 be dismissed.
The Applicant shall pay the First Respondent's costs of and incidental to the application fixed in the sum of $600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 982 of 2004

MZWPG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed on 10 August 2005 seeking to set aside an order made by this Court on 26 July 2005 dismissing an application for judicial review from a decision of the Refugee Review Tribunal. The orders made by the Court on 26 July 2005 accompanied by ex tempore reasons for judgment in MZWPG v Minister for Immigration & Anor [2005] FMCA 1059 subject to some minor corrections to that decision

I rely upon the background facts set out in that decision and in particular refer to paragraphs 3 and 4 of that decision by way of background as follows:
“3.By way of background it is appropriate to set out briefly that the applicant is a 32-year old male Malaysian citizen of Indian ethnicity and Hindu religion who arrived in Australia on 9 March 2003 and he applied for a protection visa on

22 April 2003. As indicated earlier, the visa application was refused by a delegate of the first respondent, and then on

5 April 2004 the applicant applied for review with the RRT. The claim of the applicant was a claim based on persecution from government authorities at the time for allegedly speaking out against government policies and attitude. During the course of an interview, however, with the respondent’s delegate and indeed at the RRT hearing, the applicant stated he did not actually speak out against the government in public. In the interview with the respondent and again at the RRT hearing, the claim of feared persecution appears to be in relation to Muslim groups on the basis of the applicant's Tamil ethnicity and Hindu religion. It appears during the course of the hearing at least to have abandoned any claim regarding persecution allegedly arising from speaking out against the government.
4.In any event, the decision of the RRT, whilst accepting the applicant was a Hindu of Indian ethnicity and that he worked with a temple committee in his home village, ultimately rejected the balance of the claims regarding attacks allegedly made upon him and subsequent imprisonment as implausible and incredible. Other findings which are not necessary to recite have clearly been made by the RRT in this matter, and those findings could properly be regarded as findings adverse to the applicant's credit. Adverse findings in relation to facts and in particular in relation to matters of credit in circumstances of this kind are matters which are indeed reasonably open to the RRT. In this instance I cannot detect any basis upon which this court could conclude that there has been any jurisdictional error. The RRT has simply embarked upon its fact-finding mission in an appropriate manner and drawn conclusions which I am satisfied were reasonably open to it free of any jurisdictional error.”
On that previous occasion in the absence of the applicant I had drawn a conclusion that the application did not then disclose an arguable case. The applicant in support of the application to set aside orders made on 26 July 2005 relies upon an affidavit affirmed by him on 10 August 2005 which in very brief terms simply states the following.
“This state that I was not keeping well. I could not attend the hearing and the matter was dismissed. My application may be taken into consideration for hearing (sic)”.
That affidavit was prepared by the applicant who was then unrepresented. When the matter was called on for hearing this day the solicitor sought to appear as pro bono counsel without being required to file a notice of appearance or, as is appropriate in this Court, a notice of address for service. I refused that application and did so on the basis that in my view there is a significant misunderstanding as to the use of the term "pro bono". In fact what was sought was permission for a solicitor holding a current practising certificate who was prepared to appear without fee to represent a party without then being placed on record by way of a notice of address for service as the solicitor acting for and on behalf of the applicant.
In my view it is not appropriate to simply adopt the terminology "pro bono" to thereby permit a solicitor with a current practising certificate to then appear for a party without placing himself or herself on record in the manner described. Subsequently and indeed appropriately the solicitor has filed a notice of appearance in Court this day and it is noted undoubtedly appears without fee which in itself is commendable. The use of the term "pro bono" being an abbreviation of the Latin phrase "Pro Bono Publico" has of course found its way into the Rules of the Court in Part 12 of the Federal Magistrates' Court Rules 2001 (the Rules) . It means for the public good not work performed free or at a reduced charge.
Those rules effectively replicate Order 80 of the Federal Court Rules but it is clear that this case is not an instance where there has been an application made for referral by the Court for legal assistance of a kind often described as "pro bono" assistance, and accordingly in the absence of there being any other appropriate means by which the applicant should be represented then as indicated I was not inclined to permit the solicitor to simply announce he appears "pro bono" and then not be required to place himself on record. In any event he has been granted leave to file the notice of appearance this day and to represent the applicant.
It is noted by way of preliminary observations that the solicitor currently representing the applicant without fee has obviously not had the advantage of properly considering in detail all the relevant material but nevertheless has not sought to further adjourn this application to enable that course to be followed and has acknowledged that he has had the opportunity of reading this Court's decision to which I referred earlier.
In my view that decision itself satisfactorily summarises most of the material which combined with no doubt instructions which have been obtained from the applicant himself will at least provide a sufficient basis upon which the applicant can continue to be represented and be heard in this application through his current solicitor. In the event that that is not the case, then the Court in the usual circumstances would of course entertain though not necessarily grant an application for more time to be given to the solicitor to otherwise analyse the material.
For reasons that will become evident it seems to me that even if an application of that kind had been made it would be unlikely that the Court would have granted the application given the assessment that the Court had previously made in relation to whether or not there is indeed an arguable case in this instance. Nothing has changed in relation to the material before the Court which would persuade this Court to conclude there is indeed an arguable case and I otherwise adopt and apply the reasons for judgment in my earlier decision referred to in this judgment. In particular I refer to paragraph 6 as follows:-
“6.I should note for the sake of completeness that the application itself is hopelessly inadequate. It simply refers to the orders sought. Attached to it at the time of filing was an affidavit purportedly sworn by the applicant on 28 July 2004 which again simply refers to an application for judicial review, and although it refers to errors and denial of procedural fairness and wrong application of law, there are no particulars provided, and on the face of it, the application does not in my view even disclose an arguable case in this matter. It follows for the reasons given the application should be dismissed with costs.”
The first issue to consider in applications of this kind is the reasons, if any, advanced for the non-appearance of the applicant. However in this case, given the clear finding that there is no arguable case, it is almost irrelevant to then consider whether or not a proper excuse has been offered for the non-appearance of the applicant.
However for the sake of completeness and in the event that I am in error in concluding that there is no arguable case, I shall further deal with the issue of the material relied upon by the applicant in support of the conclusion that he had a reasonable excuse for non-appearance when the matter was listed before the Court on 26 July 2005. The affidavit to which I referred earlier merely refers to the applicant “Not keeping well”. On that basis alone there is insufficient evidence upon which this Court would rely to find that there is any or any adequate explanation for non-appearance. To simply assert that a person is not keeping well without further corroboration by way of medical evidence is clearly insufficient in matters of this kind. However the applicant has tendered this day a document purporting to be a medical certificate from Dr D.C. Jayasekera. In that certificate the doctor purportedly certifies that the applicant had attended and refers to him suffering from “viral fever”. It further states that the illness commenced on 26.7.08 and further appears to express the opinion that the applicant is “Unfit for work from 26.7.05 to 28.7.05”.
The medical certificate is undated. It does not confirm the date the applicant attended. It does not indicate whether or not the condition then allegedly suffered by the applicant was of a sufficient severity to prevent him from either attending the Court in person or otherwise appearing by way of audio link. It does not provide in my view any or any adequate details which would otherwise corroborate the applicant's affidavit. The absence of a date of attendance is critical and although the applicant has sought to give evidence that he attended a surgery on 26 July 2005, he has not indicated the time of attendance. He referred to obtaining the certificate and used the words “afterwards”.
He did not explain what was meant by that reference. He did not otherwise provide in my view any further appropriate material as to the nature and extent of his condition, nor did he provide any further material as to any treatment that he may have received for the condition. The vague nature of that evidence which I find difficult to accept combined with the lack of a critical date or what I would regard as appropriate and relevant material by way of medical certificate to corroborate the applicant's explanation leads me to conclude that this Court cannot find in this instance that there has indeed been material provided to the Court of a kind which would satisfy the Court that a reasonable explanation has been provided.
I reject the applicant's evidence as being vague and unclear and in the circumstances having regard to the lack of adequate corroborative material I do not believe it provides any proper basis upon which this Court would otherwise set aside the order it made in the absence of the applicant on 26 July 2005.
The setting aside of an order for non-appearance is not a mere formality. It must be done on the proper basis of appropriate material either by way of affidavit or corroborative material likewise affidavit or oral evidence. In this case the oral evidence I found to be unsatisfactory and indeed have found the medical certificate for the reasons stated now tendered to be likewise unsatisfactory. Further, as indicated at the commencement of this decision, in any event I am satisfied that there is no arguable case in this matter. It follows for those reasons that the application filed 10 August 2005 should be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 September 2005