MZWPR v Minister for Immigration

[2005] FMCA 875

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWPR v MINISTER FOR IMMIGRATION [2005] FMCA 875

MIGRATION – Application for reinstatement of application for review of Refugee Review Tribunal decision – original application dismissed due to non-appearance at hearing by the applicant – reason for previous non-attendance – whether the applicant has an arguable case – reinstatement application dismissed with costs.

Federal Magistrates Court Rules 2001(Cth)
Migration Act 1958 (Cth)

NAFG v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2003] FMCA 558
Re Minister for Immigration and Multicultural Affairs; Ex parte Dura (2000) 168 ALR 407
SZCEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 389

Applicant: MZWPR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1073 of 2004

Judgment of: Connolly FM

Hearing date: 23 June 2005

Date of Last Submission: 23 June 2005

Delivered at: Melbourne

Delivered on: 23 June 2005

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: N/A

Counsel for the Respondent: Ms Miller

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1073 of 2004

MZWPR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIDGENOUS AFFAIRS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

The proceedings

1. This is an application for reinstatement of the application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 23 July 2004. The judicial review application was dismissed by me on 22 April 2005, pursuant to Order 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth), when the applicant failed to appear.

2. The application for reinstatement is supported by a very short affidavit sworn by the applicant and filed on the 10 May 2005.  The affidavit does not disclose the date on which it was sworn.  The applicant says in his affidavit that the court orders were not received and he further states that he wanted the matter reinstated to enable him to provide oral evidence regarding his claim as a political refugee.  When asked in Court whether there was anything else he wanted to say he indicated that there was not.

3. The respondent opposes the application for reinstatement and on

   
   

   21 June 2005 filed an affidavit from Emily Nance, a solicitor with the Australian Government Solicitor, as well as an outline of submissions in support of the respondent’s position.  The affidavit refers to and annexes a notice of intention to withdraw from the proceedings filed by the applicant’s solicitors, received by the respondent on 16 March 2005.

4. The notice discloses the address of the applicant at 1/115 Devonshire Road, Sunshine in the State of Victoria, 3020.  The respondent forwarded correspondence to the applicant at that address on 23 March 2005, 12 April 2005 and 14 April 2005 indicating that the matter was listed for hearing on 22 April 2005.

The Law

1. Federal Magistrate Riethmuller in SZCEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 389 held:

   9.  I accept the submissions of Mr Wee that when the applicant makes this application to reinstate his judicial review application he must demonstrate to the court:

   (a) a satisfactory reason why he has failed to comply with the courts orders; and

   (b) that the applicant has an arguable case. 

   I accept that as an accurate statement of the law.

Conclusions & findings

1. The applicant in my view fails to provide an adequate explanation of his non-attendance at Court on 22 April 2005.  He proffers no reason for not receiving the correspondence forwarded by his solicitor of by the respondent.  He does not say that he did not reside at that address at the relevant time nor does he explain how it was that he came to be aware of the decision made on 22 April 2005.

2. Federal Magistrate Barnes in NAFG v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FMCA 558 held:

   the power (of reinstatement) is generally not to be exercised unless the application is able to show that by accident, and without fault on his part, the order was made without his being heard.  It is necessary to look at the whole of the circumstances.

   In all of the circumstances of this matter, I am not satisfied that the applicant’s non-attendance was without fault on his part.  There is no evidence of any enquiries made of his solicitor nor is there any explanation of where he resided at the relevant times or what explanation he gave to his solicitors about his address.

3. The applicant has not provided any basis for his claim that the Tribunal fell into jurisdictional error in making the decision.  The Tribunal in essence was not satisfied that the applicant satisfied the selection criteria.  It was not satisfied that he had a well-founded fear of persecution for a Convention reason.  The Tribunal’s decision was grounded on its credibility findings about the applicant’s claims and evidence.  “Credibility was a matter for the Tribunal par excellence”: Re Minister for Immigration and Multicultural Affairs; Ex parte Dura (2000) 168 ALR 407 at 67.

4. Indeed what the applicant says in his affidavit is that he wants the matter re-opened to enable him to give oral evidence of his claim as a political refugee.  I am satisfied that no good purpose would be fulfilled by granting the reinstatement application.

5. Accordingly I propose to dismiss the application with costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate:  N. Lane

Date:  23 June 2005