MZWQE v Minister for Immigration

[2005] FMCA 1058

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWQE & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 1058

MIGRATION – Refugee Review Tribunal – protection visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Facsimile transmission claiming inability to attend court due to illness not sufficient – no medical details provided in certificate – application without merit.

Federal Magistrates Court Rules 2001

Applicants: MZWQE & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1114 of 2004

Judgment of: McInnis FM

Hearing date: 25 July 2005

Delivered at: Melbourne

Delivered on: 25 July 2005

REPRESENTATION

Applicants: No appearance

Counsel for the Respondent: Mr. S. Hay

Solicitors for the Respondent: Clayton Utz Lawyers

ORDERS

1. The amended application filed 29 March 2005 be dismissed pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001.

2. The Applicants shall pay the Respondent's costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1114 of 2004

MZWQE and OTHERS

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this application the applicant has failed to attend the hearing, and accordingly, in default of appearance of the applicant, under Rule 13.03A of the Federal Magistrates Court Rules 2001 (“the Rules”) there are a number of options available to the Court. The Court can simply dismiss the application under Rule 13.03A(c) or can proceed with the hearing generally under part (d) of the Rule. The respondent has urged the Court to proceed generally with the application in the absence of the applicant. The applicant's absence to some extent is explained by a facsimile transmission which appears to bare a date and time imprint of 25 July 2005 at 14.03 hours. Assuming that time to be accurate, it would appear that the facsimile transmission was forwarded to the Court approximately 10 to 15 minutes prior to the scheduled hearing time.

2. The facsimile transmission is brief and the author who I take to be the applicant, states, "My case is on 25 July 2005 at 2.15 pm.  I am sick, unable to come to the court.  Medical certificate is attached."  The medical certificate attached dated 25 July 2005 from a medical practitioner simply states the following, "This is to certify that I have today examined" - and thereafter the name and address of the person I take to be the applicant is inserted, and goes on to state - "In my opinion he/she will be unfit for his/her normal work today."  That certificate and indeed the covering letter provides no basis upon which the Court can determine the nature and extent of the illness, the duration of the illness, the date or time of its onset, and the extent, if any, to which the illness prevented the applicant from attending Court this day.

3. In my view, where applicants seek to simply forward by facsimile transmission inadequate material of this kind, unsupported by appropriate affidavit material, then it is incumbent upon them to provide at least some basis upon which the Court can make an assessment of the true extent and nature of the condition claimed to provide a basis for non-appearance. That combined with an assessment of the merits of the application, in my view, entitles this Court to proceed under Rule 13.03A(d) of the Rules rather than simply dismiss the matter effectively in a summary way for want of appearance.

4. This matter has been listed for hearing for some time and I am satisfied that the applicants have been made aware of this hearing date.  The applicants have in fact filed an amended application on 29 March 2005 and contentions of fact and law on the same day.  The matter had been the subject of orders made by a Registrar on 15 December 2005.  The decision sought to be reviewed is a decision of the Refugee Review Tribunal (“the RRT”) dated 12 July 2004.

5. For reasons which will become apparent, in considering whether or not to proceed to consider the matter generally as a substantive hearing or to simply dismiss the application for want of appearance, it is clear to me that the application is effectively without merit.  So much is apparent from the amended application and the applicant's contentions of fact and law.  I am satisfied that the amended application and the contentions relied upon by the applicant do no more than seek to further agitate facts and conclusions reached by the RRT which were reasonably open to the RRT and which are not, in my view, affected by any jurisdictional error.

6. It is appropriate by way of background to note that the applicant husband who claims to be a citizen of Sri Lanka had arrived in Australia on 11 November 2001.  On 18 December 2001, he, along with the applicant wife and applicant child, lodged an application for a protection visa, although it is noted only the applicant husband makes specific claims under the convention.  He claimed that he would face persecution at the hands of followers of the Heenayana sect of Buddhism if he were to return to Sri Lanka because he is a follower of the Mahayana sect of Buddhism and was involved in attempting to convert people to his version of the faith.  He also claimed that after being involved in Sri Lankan politics he was threatened by a member of the opposition government.

7. A delegate of the respondent in a decision dated 3 April 2002 refused to grant a protection visa.  On 9 April 2003 an application for review of the delegate's decision was lodged with the RRT.  Documents were submitted in support of the application.  A Tribunal hearing occurred on 15 December 2003 where the applicant and his wife attended the hearing and gave oral evidence in support of the claims.  On 12 July 2004 the RRT affirmed the delegate's decision.

8. The application in this Court was filed on 26 August 2004, though as I have indicated, the applicants rely upon an amended application filed 29 March 2005.  In the amended application the applicants claim jurisdictional error and specifically seek to argue that the RRT asked the wrong question, identified the wrong issue, failed to take account of relevant material and took into account irrelevant material.  Under the particulars, the applicants claim the Tribunal has accepted that he was an adherent of the Mahayana sect of the Buddhist religion and accepted that he was one of a number of supporters involved in proselytising to Sri Lankans, including adherence of the Heenayana sect.  It is claimed the Tribunal has "completely missed the point".

9. Under the particulars, reference is then made to facts which I am satisfied relate to incidents and details which were properly considered by the RRT.  Indeed, a proper reading in this instance of the RRT's decision reveals a very detailed and thorough analysis of the claims advanced for and on behalf of the applicants.  The RRT has, in my view, properly considered all the issues agitated for and on behalf of the applicants.  I otherwise accept the submissions made for and on behalf of the respondent that in this instance it could not be claimed that the RRT had failed to take into account either relevant considerations or that it failed to deal with one or more of the claims.  Indeed, a proper reading of the RRT decision in this instance reveals, as I have indicated, a very thorough and detailed analysis of the claims, albeit with adverse findings in relation to the application.  The mere fact that they are adverse findings in relation to the application does not of itself provide any or any proper basis upon which this Court should conclude that there has been an error of a kind which would permit intervention by this court or would justify a finding that there has been jurisdictional error.  I accept as submitted by the respondent that in this instance the RRT dealt with each and every one of the claims made and otherwise drew conclusions which were reasonably open to it on the material then before it and having regard to the claims then made by the applicants.  I am satisfied there is no basis upon which this Court could conclude that there is jurisdictional error or indeed any error of any kind in the manner in which the RRT has dealt with the claims.  It follows that the application should be dismissed with costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM

Deputy Associate:  Brooke Evans

Date:  25 July 2005