MZXQD v Minister for Immigration

[2007] FMCA 1258

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXQD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1258

MIGRATION – RRT – judicial review – non-appearance by applicant – inadequate reasons for adjournment.

Migration Act 1958, ss.477, 486D
Federal Magistrates Court Rules 2001 r.13.03A

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
NALM v Minister For Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17

Applicant: MZXQD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 555 of 2007

Judgment of: Riethmuller FM

Hearing date: 27 June 2007

Date of last submission: 27 June 2007

Delivered at: Melbourne

Delivered on: 27 June 2007

REPRESENTATION

There being no appearance for the Applicant

Counsel for the Respondents: Ms Miller

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent's costs fixed at $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 555 of 2007

MZXQD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This is an application for judicial review by the applicant with regard to a decision of the Refugee Review Tribunal of 12 September 2003.  The applicant claimed to be a citizen of Malaysia and entered Australia on 22 September 2002.  On 14 October 2002 he lodged an application for a protection visa.  This application was refused by a delegate of the Minister on 11 November 2002.  On 12 December 2002 he applied to the Refugee Review Tribunal. 

2. Following the refusal of the application by the Refugee Review Tribunal, the applicant then some time later sought judicial review of the Refugee Review Tribunal decision on 3 August 2006. On 6 September 2006 he failed to attend at a directions hearing. He again failed to attend at a directions hearing on 4 October 2006, and on 2 November 2006, the application was dismissed pursuant to r.13.03A of the Federal Magistrates Court Rules.

3. The Australian Government Solicitor advised the applicant by letter of the dismissal and notified him of the effect of the rule.  The letter also outlined to him that the application was outside of the time limits that were prescribed. 

4. The matter comes before me today on the current application which was filed on 31 May 2007.  The applicant was called at the registry this morning and did not appear.  The applicant has faxed to the court a letter stating:

   I am sick and unable to come to the hearing on 27 June 2007.  Medical certificate is attached for your attention.

5. The medical certificate is a standard form medical certificate in the following terms:

   This is to certify that [MZXQD] is receiving medical treatment for the period 26 June 2007 to 27 June 2007 inclusive and he will be unfit to continue his usual occupation during this period.  This certificate was completed on 26 June 2007.

6. The material does not disclose what medical condition the applicant may be suffering from, nor does it even attest to a medical condition as such, simply medical treatment.  There is nothing to indicate why the applicant could not have attended today, nor why he could not have appeared by telephone. 

7. I have regard to the decisions of the Full Court of the Federal Court in NALM v Minister For Immigration and Multicultural and IndigenousAffairs [2004] FCAFC 17 and the decision of Lindgren J in NAKX vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. In these cases, the Full Court and a single judge of the Federal Court had found such certificates inadequate to properly found an adjournment application or at the very least insufficient to persuade the courts on those previous occasions.

8. I have regard to the circumstances of this case and the contents of the particular documents before me.  I am not satisfied that the documents would properly explain the absence of the applicant sufficient to justify an adjournment of this application, which I take to be the effect of the letter that has been provided, that is, an adjournment application.  

9. I therefore turn to consider whether or not an order to show cause ought be made.  In this case, the applicant did not attend before the Refugee Review Tribunal, despite receiving a letter from them, advising that they were unable to make a favourable decision on the basis of the information that was before them at the time. 

10. The applicant in his application sets out his grounds in the following terms: 

    That the decision of the tribunal was made without jurisdiction or is affected by an error or jurisdiction, putting particulars and set out the particulars in the application. 

11. The particulars of themselves do not identify any ground for judicial review.  It appears that the applicant believes he ought to have been accepted on his factual claims and granted a protection visa.  I have turned my mind to the question of whether or not these factual claims indicate that the Tribunal may not have dealt with all of the integers of the claim.  However, the facts are set out in detail at page 5 of the Tribunal decision where the Tribunal member recounted the claims and evidence of the applicant. 

12. There is nothing in the application from which I can discern any arguable or prima facie case for judicial review. The applicant also confronts other hurdles. The application was filed out of time pursuant to s.477 of the Migration Act and the extent to which it is out of time is so great that I do not have power to extend time under that Act. The application must therefore be dismissed as a result of it being out of time.

13. I also note that under s.486D, there was a failure to disclose the previous judicial review proceedings, wherein the application was not pursued.

14. Having regard to all of the circumstances, I am satisfied that the application is bound to fail in this court, firstly, because it is out of time and secondly, because it discloses nothing to indicate any possible ground on an arguable case.  I therefore dismiss the application. 

15. In this matter, the applicant has been entirely unsuccessful.  The respondent seeks costs in the sum of $2000.  The scale fee is greater than that.  In the circumstances, I therefore order that the applicant pay the respondent's costs fixed at $2000. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  J.McLean

Date:  27 June 2007