MZWZC v Minister for Immigration and Anor (No.2) - [2006] FMCA 228

FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

[2006] FMCA 228

MIGRATION – Refugee Review Tribunal – application to set aside judgment under r.16.05(2)(a) – no purpose to be served by setting aside earlier judgment – application refused.

Federal Magistrates Court Rules 2001, r.16.05(2)(a)
Migration Act 1958, s.426A

Minister for Immigration v VSAF [2005] FCAFC 73
MZWZC v Ministerfor Immigration [2005] FMCA 1975

Applicant:

MZWZC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 420 of 2005

Judgment of:

Riethmuller FM

Hearing date:

10 February 2006

Date of Last Submission:

10 February 2006

Delivered at:

Melbourne

Delivered on:

10 February 2006

REPRESENTATION

Counsel for the Applicant:

In person

Solicitor for the Respondent:

Ms Mitchell

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 10 January 2006 be dismissed.
The applicant do pay the respondent’s costs, fixed in the sum of $1,000.
The name of the first respondent be amended to Minister for Immigration & Multicultural Affairs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 420 of 2005

MZWZC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed by the applicant on 10 February 2006 seeking that:
The application be reinstated for hearing in the Federal Magistrates Court.
In this matter I gave judgment dismissing the application on 19 December 2005 when the applicant failed to appear at the hearing. The reasons for that decision are set out in MZWZC v Ministerfor Immigration [2005] FMCA 1975.
It appears to me that the applicant's application should be treated as an application to set aside that judgment under the rules relating to judgments entered when a party does not appear. This is provided for under rule 16.05(2)(a). To the extent that it may have been necessary, I would have given the applicant leave to amend his application to be reliant upon that rule.
I therefore proceed to determine the merits of the application to set aside the judgment.
The history of the matter and the nature of the application before the Refugee Review Tribunal are set out in my earlier judgment. The applicant relies upon a brief affidavit filed in support of this application in the following terms:
1.At about 9:00am on 19 December 2005 I had a medical certificate given to the Registry of the Federal Magistrates Court in Melbourne informing the Court that I was receiving medical treatment for the period between 18 December 2005 and 21 December 2005 inclusive and was unfit to continue working during the period. Annexed to this affidavit and marked ‘A” is a copy of that medical certificate dated 18 December 2005.
2.I believed that the Court would respond to this information on 19 December 2005 by adjourning the hearing to a date after 21 December 2005.
3.The Court made an Order on 19 December 2005 dismissing my application. Annexed to this affidavit and marked “B” is a copy of that Order.
4.I believe that I was denied an opportunity to be heard by the Court as a result of its decision to make the Order on 19 December 2005.
5.On 9 March 2005 I attended the Melbourne registry of the Refugee Review Tribunal and requested the Tribunal to schedule another hearing because I had not attended the hearing scheduled for 8 March 1995. I was informed by a staff member at the registry of the Tribunal that my request had been refused by the Presiding Member of the Tribunal, even though I had made my request well before the date his decision was handed down on 1 April 2005.
6I believe that the Presiding Member of the Refugee Review Tribunal denied me natural justice in not giving me an opportunity to attend a hearing before he handed down his decision to affirm the decision by the Department of Immigration and Multicultural and Indigenous Affairs not to grant me a protection visa.
7 I humbly request the Federal Magistrates Court to set aside the orders made on 19 December 2005 and to reinstate my case.
In paragraph 3 of my judgment in the matter I set out my reasons for not accepting the medical certificate as a sufficient basis for adjournment. The applicant has not addressed the issues raised in that paragraph in his subsequent affidavit. However, I am mindful of the fact that a failure to properly explain an absence would not of itself be a reason for refusing an applicant who otherwise had an apparently good case or arguable case from having a hearing.
I therefore turn to consider whether or not the applicant has an arguable case in this matter. For the reasons set out in my previous decision, I am not of the view that the matters raised in the earlier written material provide any basis for judicial review of the decision. The applicant does not seek to place any further argument or material before me other than the point that the tribunal declined to provide him with another hearing time after he missed his first hearing time and attended the following day. Whilst it is not set out in the affidavit, the applicant explained from the bar table that his failure to attend was an oversight.
The tribunal member dealt with this at pages 5 to 6 of the decision in the following terms:
Application for Review
The applicant made no new claims in his application for review.
On 13 January 2005 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant advising that it had considered all the material before it relating to his application but 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 Tuesday, 8 March 2005. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
On 25 January 2005 the applicant informed the Tribunal that he would be attending the scheduled hearing. However, the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear, and on the date of making this decision the applicant has not advised the Tribunal of any reason for his failure to attend the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Section 426A of the Migration Act specifically provides for the tribunal to proceed to make a decision if the applicant does not appear at the time appointed. The tribunal has a discretion to reschedule a hearing. In this case the tribunal appears to have exercised its discretion to proceed to make a decision without rescheduling the hearing.
The Full Court in Minister for Immigration v VSAF [2005] FCAFC 73 confirmed (at paragraph 11) that s.426A authorises a tribunal to proceed to make a decision and not be required to set another hearing time. The Full Court said:
[12] The primary judge referred to s.426A in the context of saying that an applicant’s non-attendance at a hearing does not affect the Tribunal’s obligation to review the decision but did not explain how reliance on s.426A would amount to a dereliction of duty on the Tribunal’s part. The primary judge’s decision in this respect is inconsistent with the Full Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said:
"Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence."
[13] It could not be said that the respondent’s failure to attend the hearing was through no fault of his own. He was aware of the hearing date, simply announced that he would not be attending (see [2]), and failed to comply with what, in the circumstances, was a perfectly reasonable request to provide substantiation of his reason for not attending. The primary judge seems to have doubted whether the Tribunal’s officer had power to request substantiation. His Honour said the officer "appears to have been unconcerned by the question whether the Tribunal had any power at all to request the information it requested". Although his decision did not turn on this issue, we note that in NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [35] a Full Court said:
"The Tribunal, having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s.425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the appellant."
[14] The respondent submitted that the Tribunal was obliged to reschedule the hearing because it gave him the opportunity to provide details of his non-attendances by 12 June, which was a day after the hearing date. It was said that the respondent would have assumed from this that the hearing would be rescheduled, if for nothing else but to consider his reasons for non-attendance. We do not accept this submission. Had the respondent complied with the request for information by 12 June, the Tribunal would doubtless have communicated with him as to whether there was to be a new date. However he did not provide the requested information by 12 June, or at all, and on 19 June the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable him to appear before it.
[15] In our view the primary judge erred in concluding that in the absence of an adverse finding as to the reasons for non-attendance, the Tribunal was obliged to attempt to schedule another hearing, or that, as his Honour put it, it was a dereliction of its duty not so to attempt.
The tribunal has provided the applicant with an opportunity to be heard and the applicant has failed to avail himself of that opportunity in circumstances where it could not be said that it was through no fault of his own (for example, a case where a person was in a motor vehicle accident on their way to the hearing or the like). It appears to me that it is within the discretion of the tribunal to decide whether or not to set another time for hearing or proceed to make a decision.
It does not appear to me to be arguable that the tribunal in proceeding to determine this matter has committed a jurisdictional error.
In the circumstances I am not satisfied that the applicant has an arguable case and therefore it appears to me that there is no purpose to be served in setting aside my earlier orders. This, taken with the lack of detail of explanation for the non-attendance before the court on the previous occasion, and the overall circumstances of the nature of and conduct of this case, leads me to refuse the current application.
I therefore order that the application be dismissed.

Further argument on costs

In this matter the applicant was unsuccessful in trying to reinstate the matter and there is no reason that costs ought not follow the event.

I therefore find that it is appropriate that the applicant pay the respondent's costs. Having regard to the Federal Magistrates Court scale and the nature of the matter, it is appropriate that those costs be fixed at $1,000.
I further order that the respondent's name be amended to remove the reference to indigenous affairs as it no longer forms part of the respondent’s name.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: