MZWXT v Minister for IMMGRATION - [2005] FMCA 1769

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWXT v MINISTER FOR IMMGRATION

[2005] FMCA 1769

MIGRATION – Protection visa.

PRACTICE AND PROCEDURE – Application to set aside order – whether reasonable excuse for non-attendance – insufficient to simply assert ‘was sick’ – whether arguable case.

Migration Act 1958, s.424A

Applicant:

MZWXT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG244 of 2005

Judgment of:

McInnis FM

Hearing date:

25 November 2005

Delivered at:

Melbourne

Delivered on:

25 November 2005

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Ms M. O'Regan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application filed 26 October 2005 be dismissed.
The Applicant shall pay the Respondent's costs of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 244 of 2005

MZWXT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed 26 October 2005 seeking to set aside an order of this court made on 5 October 2005. The application to set aside the order is supported by an affidavit sworn by the applicant on 26 October 2005. That affidavit, though filed apparently, was not served upon the respondent but no issue is taken about the lack of service. The affidavit is very brief. It states simply the following:
“1. I was sick and I did not attend the hearing on 5 Oct 2005.
2.I request the Court to reinstate my case for hearing.”
The substantive application which had been before the court was the subject of an amendment and it was the amended application filed 6 June 2005 which was dismissed by order of the court made on 5 October 2005 upon there being no appearance for the applicant. Hence the applicant, upon receiving presumably a copy of that order has sought to set it aside and his application to set aside is supported by the affidavit to which I have referred.
By way of background, the substantive application sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 7 January 2005. The applicant is an Indian citizen who had arrived in Australia on 22 August 1999 and he applied for a protection visa on 30 September 1999 and in support submitted a typed statement dated 26 September 1999. The delegate of the Respondent had refused the application in a decision dated 22 August 1999 and the applicant then subsequently lodged an application for review before the tribunal. He attended a tribunal hearing on 21 December 2004 and gave evidence and the Tribunal in its decision affirmed the delegate's decision to refuse the protection visa.
The court in considering an application to set aside an order made in the absence of the applicant is entitled to have regard to the material provided by the applicant in support of his application to set aside that order. The applicant was invited to provide further material, or indeed give further evidence in support of the application and declined to do so. He is not represented, although he is assisted by an interpreter. The Respondent has submitted that in this case the material in support of the application does not get over what might be described as the first hurdle in applications of this kind. That is, it fails to provide any, or any adequate material which would provide a basis upon which the court could find that there was a reason provided for non attendance on the hearing date.
The hearing date of 5 October 2005 was the subject of a notice of listing forwarded to the parties dated 10 April 2005. Both parties therefore had significant notice of the hearing. In my view the affidavit now sought to be relied upon by the applicant is deficient. Whilst referring to the applicant being "sick" it gives no details of the nature and extent of the illness. The applicant provides no further corroborative evidence by way of a medical certificate specifying the nature and extent of the illness and there is simply no other evidence which would otherwise enable this court in my view to form a conclusion that there is indeed any, or any adequate evidence providing a reasonable explanation for the non attendance of the applicant at the scheduled hearing date.
To simply assert as the applicant does, "I was sick" does not of itself provide without appropriate corroboration, or indeed at least some further details, sufficient material upon which the court would set aside an order made in the absence of the applicant. Further, in my view, even if I were satisfied that the material could possibly constitute a proper basis upon which the court would accept there has been a reasonable excuse for non attendance at the earlier hearing, I am further satisfied that in any event on the material before me, there does not appear to be an arguable case.
Counsel for the respondent appropriately and if I may indicate quite fairly has drawn the court's attention to what may at the very least potentially be a ground to be relied upon by the applicant at a substantive hearing, not referred to currently in the amended application or material by the applicant. Namely, an argument relying upon a possible breach of s.424A of the Migration Act 1958 (the Act) which relevantly provides:-
“Applicant must be given certain information
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.”
Essentially, the Respondent's representative has brought to the court's attention the reasoning of the Tribunal where it expresses some doubts as to the genuineness of the Applicant's material and does so based upon a comparison between the written submissions of the applicant and his oral evidence as to events which occurred arising out of an allegation of detention in 1985. The Respondent has indicated that in certain circumstances it may be arguable that where a tribunal makes findings, referring to an inconsistency of that kind, the information albeit information that may have been supplied either in the application or in supporting material, may not attract the exemption of s.424A(3) of the Act and as a matter of law ought be the subject of the invitation under s.424A in writing to the applicant by the Tribunal to comment on the discrepancy and the material, which as I have indicated may be material supplied by the Applicant himself. In the Tribunal's decision, under the heading "Findings and Reasons" (Court Book page 106), the Tribunal states the following:
“… However the Tribunal has some doubts as to the genuineness of the applicant's material claims of what happened to him during this period given the numerous inconsistencies and contradictions between what he claimed in the hearing and what he had earlier claimed in his written application.
The Tribunal does not accept that the applicant's claim that he was detained in February 1985 after his father was picked up by the police while checking on his farms. The applicant failed to mention this claim in the hearing until the Tribunal specifically asked him about it. He then provided a completely different version of what took place to that which he had claimed in his written submission. …”
Up to that point, noting as the court does that the Tribunal then explores in further detail those matters, it may well be the inconsistencies in relation to the evidence and non acceptance by the Tribunal in relation to what happened in the incident in February 1985 may potentially form a basis for a claim based upon contravention of s.424A of the Act.
However, when one continues to read the Tribunal's findings, it seems that whilst pointing out the discrepancies, particularly in relation to what the Applicant stated in his written submissions as to being picked up by police, beaten and detained for a week, compared with what he claimed at the hearing that he was, "stopped by the police and searched from the waist down and then let go", the Tribunal then goes on to state significantly in my view the following:
“Although the Tribunal does have some reservations regarding the applicant's credibility and notes the applicant failed to mention his detention by the police in May or June 1985 in his written submission, the Tribunal has given the applicant the benefit of the doubt and accepts that he may have been detained at one time in May or June 1985. It accepts he may have been picked up, questioned and detained for 2 days by the police. The Tribunal notes that this was during the height of the Khalistan movement and that such actions by the police was consistent with what was happening in the Punjab at the time.
The Tribunal also accepts that the applicant may have been shot while running from the police. It accepts the applicant may have been involved in pasting posters for groups such as the AISSF. The Tribunal does not accept that the applicant was a member of the AISSF. …”
(Court Book p.107)
It goes on then to make other adverse findings about the Applicant and then otherwise refers to country information. Whilst I note that there were different events, that is February 1985 and then May or June 1985 events, it seems to me on a proper reading of the totality of the reasoning of the Tribunal, that the comparative analysis of events described in the written submissions compared with those in the oral submissions relating to the February 1985 matter, whilst giving rise to doubts by the Tribunal, may not properly be concluded as providing a proper basis upon which a contravention of s.424A had occurred, in the sense that in my view those conclusions should not necessarily be regarded as the reason, or a part of the reason for affirming the decision that was under review.
It seems to me that the reasons for affirming the decision under review relate to other matters including membership of the political group and other adverse findings of the Tribunal in relation to this applicant. However, in the event that I am incorrect in that assessment, it remains my view that even if there was an arguable case in the circumstances of this application, given my finding in relation to what I have described as the first hurdle, I do not consider it appropriate in the exercise of my discretion to then permit the applicant to seek to pursue the application in relation to what appears to be at the very least the only potential arguable aspect of the case arising out of s.424A of the Migration Act for the reasons given.
Otherwise the amended application itself seeks in my view to do no more than re-agitate the facts which would not provide an appropriate basis for judicial review. It follows for the reasons given that the application filed in this court on 26 October 2005 should be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 25 November 2005