MZXPW v Minister for Immigration

[2007] FMCA 2044

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXPW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2044

MIGRATION – Refugee Review Tribunal – delay sought by Applicant to obtain updated country information – information not relevant to judicial review – non-appearance by Applicant – application dismissed pursuant to r.13.03A(3) of the Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, r.13.03A(3)

Applicant: MZXPW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 448 of 2007

Judgment of: McInnis FM

Hearing date: 29 November 2007

Delivered at: Melbourne

Delivered on: 29 November 2007

REPRESENTATION

Applicant: No appearance

Solicitor for the First Respondent: Mr W.S. Mosley

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001.

2. The Applicant pay the First Respondent's costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG448 of 2007

MZXPW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 23 February 2007.  In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.  When the matter was called this day, there was no appearance for the Applicant.  I am satisfied that the parties have been given adequate notice of the hearing this day, and that occurred in a further amended notice of listing dated 8 November 2007 which appears to have been forwarded to both parties and in particular to the Applicant at the appropriate address for service.

2. It also seems clear to me that the Applicant was cognisant of these proceedings being listed today as the court received a document purportedly from the Applicant, though forwarded by facsimile transmission, dated 12 November 2007 where the Applicant provides the same address which appeared on the further amended notice of listing and otherwise states the following:

   “My date of listening is due on 29 November 2007 But I want more time for my application.  1^st you the situation in Pakistan is very bad and bomb blast, terrorist attack and marshal law these kind of things happening in that country.  I have no support there to get my evidence back, simply if i go back in these kind of situations surely will die.  So please analyse all these conditions and give me more time and cancel my hearing date.  I shall be very thankful to you.” (sic)

3. The letter set out above verbatim I take to be an application for an adjournment, notwithstanding the absence of the Applicant and, moreover, notwithstanding the fact that there is simply no evidence to explain why the Applicant is not present at court this day.  I understand that the First Respondent opposes the adjournment, and the opposition to the adjournment was communicated recently to the Applicant by way of letter.

4. Clearly there is no reasonable explanation before the court to explain the non-appearance of the Applicant this day.  I am prepared, however, in the absence of the Applicant, to consider the issue of whether an adjournment would be appropriate.  In the application for judicial review, the Applicant has not sufficiently, in my view, particularised the grounds relied upon, and in any event I note in passing that the Applicant sought and was granted further time by the Tribunal itself to provide additional information, and in particular country information.

5. In my view where the court undertakes judicial review it is not a proper basis to grant an adjournment where that adjournment is sought on the ground that the Applicant, as in this case, seeks to refer to the current situation in his country of origin;  namely, Pakistan.  The court is concerned to undertake judicial review and consider the decision of the Tribunal and, furthermore, to consider whether that decision, on the material then presented to the Tribunal, is one where there could be identified an error of a kind which would justify judicial intervention, more often than not referred to as jurisdictional error.

6. It does not assist the court's task to obtain updated evidence as to the current situation in Pakistan.  That may of course be a relevant matter for the Minister to take into account if and when another application is made directly to the Minister.  It is not, however, in my view, a matter that is relevant to the court undertaking judicial review in this application.  Accordingly, in my view there is no proper basis to grant the adjournment, and the adjournment application set out in the correspondence is therefore refused. 

7. That leaves the question of whether or not it is appropriate to make an order pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001 dismissing the application on the grounds that the party is absent; that is, the Applicant. It is clear that rule 13.03A(c) provides for the power of the court to dismiss the application in the absence of the Applicant. As indicated earlier in this judgment, it is apparent that there is no reasonable excuse provided to the court for the non-appearance of the Applicant this day.

8. Having refused the application for the adjournment on the grounds set out earlier in this judgment, in my view it is appropriate in the exercise of the court's discretion, there being no reasonable excuse offered for the non-appearance of the Applicant, to make an order that this application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001, and accordingly I make that order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  29 November 2007