MZXKM v Minister for Immigration - [2006] FMCA 1872

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXKM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1872

MIGRATION – Application for reinstatement – no reasonable excuse for non-compliance – time limits – no arguable case – application refused.

Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05
Migration Act 1958, ss.417, 477
Migration Litigation Reform Act 2005

VSAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1270
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VSAF of 2003 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) HCA Trans 757 (9 September 2005)

First Applicant:

MZXKM

Second Applicant:

MZXKN

Third Applicant:

MZXKO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG782 of 2006

Judgment of:

McInnis FM

Hearing date:

11 December 2006

Delivered at:

Melbourne

Delivered on:

11 December 2006

REPRESENTATION

First Applicant:

In person

Solicitor for the First Respondent:

Ms K. Miller

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application for reinstatement be refused.
The Applicant shall pay the First Respondent's costs fixed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG782 of 2006

MZXKM

First Applicant

MZXKN

Second Applicant

MZXKO

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application presumably pursuant to r.16.05 of the Federal Magistrates Court Rules 2005 (the Rules) seeking to reinstate an Application which had been filed in the court on 20 June 2006. The Application filed on 20 June 2006 sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 11 July 2003. In that decision the Tribunal refused an application for a protection visa for the Applicants who are respectively a husband and wife and daughter. It is the First Applicant, the husband, who is the primary Applicant.
The Applicants are Indian citizens of Fiji who arrived in Australia on 25 November 2005 and applied for protection visas shortly thereafter. The history of this matter is somewhat detailed and I shall refer to that in due course in considering the application. At the outset, however it is noted that the Application before me is an Application for reinstatement as I have indicated of the Application which had been filed on 20 June 2006.
The reason for the application is that on 13 November 2006 the court had scheduled a hearing of what effectively was an Application for summary dismissal of the application by the First Respondent. On that day none of the Applicants attended court. Accordingly on that day the court made an order that the application be dismissed, pursuant to r.13.03A(c) of the Rules due to non‑appearance of the Applicants. An order was made in relation to costs.
The Application for reinstatement in a matter of this kind requires the court to consider first whether or not a reasonable excuse has been provided for the non-attendance of the Applicants before the court on the previous hearing date. The court is not concerned about the non‑appearance of the Third Applicant and indeed is less concerned about the non-appearance of the Second Applicant but on the day of the hearing was concerned to note that there was no appearance and in particular no appearance of the First Applicant.
The first Applicant, in support of the re-instatement Application has relied upon an Affidavit which appears to have been either sworn or affirmed by him on 17 November 2006. Unfortunately the particulars at jurat on the Affidavit do not appear to indicate whether the affidavit was sworn or affirmed. But I note in passing that the First Applicant was given the opportunity to give evidence and did so and was duly affirmed.
The Affidavit that he relied upon annexed to it a document purporting to be a medical certificate dated 11 November 2006 from ‘Complete Care Medical Centre’. The document refers to the Applicant by name, which I shall not include in this judgment but simply states, deleting that name, the following:
“This is to certify that …[the First Applicant] attended Complete Care Medical Centre on the 11 Nov 2006 and he is unfit to attend courts from 13/11/06 to 14/11/06 (inclusive) due to a medical condition.”
In evidence before the court the Applicant confirmed that he had forwarded a copy of that certificate by facsimile transmission to the court. A confirmation note appears on the annexed attachment and appears to indicate that the certificate was forwarded to the facsimile number of the court and I note was forwarded by the medical centre and so much has been confirmed and I accept from the Applicant.
I am prepared to accept the certificate, although forwarded by facsimile transmission on 11 November 2006, which I note was a Saturday, was at least forwarded to the court, although a copy does not appear on the court file and it does not appear that a copy was before the court when it considered the matter on 13 November 2006.
It is clear that the certificate itself is somewhat vague and I indicated to the Applicant that in order to establish that he had a reasonable excuse for not attending the court on 13 November 2006 he would need to give evidence. I permitted him to do so, there being no objection from the First Respondent, though the First Respondent and the court then had the opportunity to ask questions.
In his evidence the Applicant claimed that on Saturday, 11 November 2006 he attended a medical practitioner as a result of a medical condition he then suffered, namely diarrhoea. He claimed to have been unwell thereafter and was not well enough to attend court on Monday, 13 November 2006. He further claimed that the Second Applicant, his wife, was also unwell though there was no further medical information concerning her state of health.
He further confirmed that he did not forward the certificate to the First Respondent and nor did he make any attempt to make telephone contact with either the court or the First Respondent. He gave evidence that after the consultation on Saturday, 11 November 2006 he did not seek, nor receive any further medical treatment.
Rather than dealing with the question of whether the Applicant has a reasonable excuse for not attending, I have been invited by the First Respondent to proceed instead to make a finding that there is indeed no arguable case in this matter, rather than to consider whether there is a reasonable excuse.
In matters of this kind, although it is in a sense tempting to proceed to consider whether there is an arguable case, it seems to me having received the Affidavit material from the Applicant and having heard the Applicant's evidence, it is appropriate that I do make formal findings as to whether I am satisfied on the material before me that the Applicants have provided a reasonable excuse for non-attendance on 13 November 2006.
In my view, the medical evidence, combined with the evidence given this day by the Applicant is insufficient to justify the court reaching a conclusion that there is a reasonable excuse for non-attendance by the First Applicant and indeed by the Second Applicant. However, dealing with the First Applicant, who as I have indicated is the primary Applicant, it is my conclusion that to simply assert that the Applicant suffered diarrhoea on Saturday, 11 November and then further indicate that by the Monday, 13 November the condition persisted to the extent that the Applicant was unable to either contact the court by telephone to arrange perhaps an audio-link application for an adjournment, or to at the very least notify the court of the inability to attend is adequate.
In other words, the material before me does not satisfy me that there is a reasonable excuse for non-attendance, or at the very least for not providing to the court some notice of the inability to attend that day, save and except for forwarding, as I have accepted has been forwarded, the vague certificate referred to earlier in this judgment dated 11 November 2006.
In my view there is inadequate material to satisfy me in those circumstances that there was indeed a reasonable excuse for non‑attendance. However, in the event that I am incorrect in making that finding, it is appropriate to determine whether or not there is otherwise an arguable case.
In this Application the First Respondent relies upon s.477 of the Migration Act 1958 as follows:
“(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
I note that in this matter the history includes the fact that the Tribunal decision is dated 11 July 2003. I note further that the Applicants had been invited to attend a hearing of the Tribunal but did not do so and that the decision, that is the adverse decision of the Tribunal was handed down which affirmed a decision of the delegate of the First Respondent to refuse to grant protection visas.
It is also noted that on 5 August 2003, in Federal Court proceedings VID 651 of 2003 the Applicant sought judicial review of the decision of the Tribunal. On 6 October 2004, Gray J of the Federal Court handed down a decision remitting the matter to the Tribunal for reconsideration (see VSAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1270).
I note further and accept from the submissions of the First Respondent that the decision of His Honour Gray J was then the subject of an appeal by the Minister to the Full Court of the Federal Court. The appeal was filed on 25 October 2004. On 10 May 2004 the Full Court allowed the Minister's appeal. The court ordered that the decision below be set aside and the Applicant's Application be dismissed. It is useful to refer to that decision of Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 where the court relevantly provides a summary of the Applicant's claims in paragraph 3 of the court's judgment as follows:
“3 The material before the Tribunal in which the respondent’s claims were identified consisted of a two and a half page memorandum that had been before the delegate and a two page document accompanying the application for review. The Tribunal recorded the respondent’s claims as follows:
‘The [respondent] claims that he is Indo-Fijian and as such is at the mercy of native Fijians and the whole idea of ‘Fiji for Fijians’. He claims that at the time of the military coup of 1987 he was working as a law clerk for Jasbir Singh & Co and he was detained along with the whole staff. He was detained at the Army Barracks and questioned by security officers. He was tortured. When he was released they warned him not to support the NFP. He suffered subsequent physical attacks and his wife was insulted. During the second coup by George Speight he was again picked up by security officers for supporting the Fiji Labour Party during the 1999 elections and also for harassing native Fijians while serving them with summonses to appear in court for not repaying their loans. These were false allegations. The [respondent] claims they did not want him to work for the NBF (National Bank of Fiji). He was tortured and humiliated. After he promised that he would work in favour of the native Fijian borrowers he was released and warned that if he didn’t keep his promise he would be shot. He claims that none of the reports he made to the police ever brought him any positive results.’”
On 5 July 2005 in High Court proceedings HC M61 of 2005, the Applicant sought special leave to appeal to the High Court. On

9 September 2005 the High Court refused the application for special leave to appeal. It found there was no error and indeed no jurisdictional error in what the Tribunal had done in the circumstances of the case (see VSAF of 2003 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) HCA Trans 757

(9 September 2005)).
The Applicant has informed the court that after the decision of the High Court an application was made, presumably pursuant to s.417 of the Migration Act seeking the exercise of the Minister's discretion. That application was unsuccessful. It is clear then from the chronology of events that after the High Court decision the Applicants filed in this court on 20 June 2006 a further application seeking judicial review.
In the First Respondent's submissions reliance was placed upon earlier written submissions which in turn sought to refer to s.477 of the Migration Act. For the purposes of this application for reinstatement, it is submitted that there is no arguable case as the application is simply out of time and accordingly this court does not have jurisdiction to hear the application. Summary dismissal is sought.
In the submissions, after referring to s.477 of the Migration Act referred to earlier in this judgment, it is submitted and I accept that the provisions were inserted by the Migration Litigation Reform Act 2005 and are set out in schedule 1. Section 2 of that legislation provides that the provisions in schedule 1 take effect from 1 December 2005, that is the commencement day. Clause 42 of the transitional provisions to the Reform Act provide that where as in the present case, actual notification of the decision had been given before the commencement date and proceedings had commenced on or after the commencement day then s.477 of the Migration Act applies as if the actual notification of the decision took place on the commencement day.
It is submitted and I accept that taking into account the 28-day period plus 56 days referred to in s.477 set out above means that applications in relation to decisions published and actually notified before

1 December 2005 are incompetent if they are filed in this court on or after 24 February 2006.
The First Respondent submits that on the latest possible calculation the Applicants must have had actual notification of the decision by the date of filing the application in VID 651 of 2003, that is on 5 August 2003. The effect it is submitted, and I accept, of the transitional provisions is that the Applicants are deemed to have been notified on 1 December 2005.
Given that the present application was filed on 20 June 2006, then it is clear in my view that the application is out of time and I accept, as submitted by the First Respondent that the court accordingly has no power to extend the time for this application. In the circumstances it follows in my view that there is indeed no arguable case.
Having found that there is no arguable case and in addition having found that I am not prepared to accept that any reasonable excuse has been provided for the non-attendance of the Applicants on 13 November 2006, it follows in my view for the reasons given, that the application for reinstatement should be refused and the Applicants should be ordered to pay the First Respondent's costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 11 December 2006