MZXQD v Minister for Immigration and Citizenship
[2007] FCA 1930
•9 November 2007
FEDERAL COURT OF AUSTRALIA
MZXQD v Minister for Immigration and Citizenship [2007] FCA 1930
MZXQD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 640 OF 2007GRAHAM J
9 NOVEMBER 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 640 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MZXQD
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
9 NOVEMBER 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.‘Refugee Review Tribunal’ be added as a second respondent.
2.The appeal be dismissed as incompetent.
3.The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 640 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MZXQD
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
9 NOVEMBER 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 27 June 2007 Riethmuller FM had before him an application for constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 12 September 2003, which had been handed down on 3 October 2003. In the absence of an appearance by the applicant – identified, for the purpose of the proceedings in the Federal Magistrates Court of Australia and also in this court as ‘MZXQD’ – his Honour made the following orders:
‘(1) The application be dismissed.
(2)The applicant pay the respondent’s costs fixed at $2000.’
I understand this to be a reference to the first respondent’s costs, the second respondent having, I assume, filed a submitting appearance.
The ground of the application, which had been filed on 3 May 2007, was expressed as follows:
‘1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
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My main fear was in relation to local Muslim gangs. I was attacked by these gangs many times and when I went to the police to report the incidents, they did not take any action. If I were to return to Malaysia I will suffer persecution at the hands of these gangs.
I was also a member of the Malaysian Indian Congress party, but the leadership used intimidation and violence to control party members.
Members were threatened and beaten up and I experienced clashes at several party meetings when there was opposition to the leadership.
I say there was sufficient evidence provided to the tribunal by me in my original application for the tribunal to make a decision. I say the tribunal is wrong when it concludes there is not a real chance that I fear serious harm amounting to persecution.’
The reasons for judgment of Riethmuller FM included the following:
‘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.
…
4.The matter comes before me today on the current application which was filed on 31 (sic) May 2007 [the correct date would appear to have been 3 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 [a Tuesday] to 27 June 2007 [a Wednesday] 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. [I interpolate that I asked the appellant, who has appeared before me, how it was that he was well enough to attend on the Moreland Medical Clinic to obtain the certificate, yet was not well enough to attend court on the following day. His response was that this was a “good question” and as I understand it he had no answer to it.]
…
8.… 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 to 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.
…
11. The particulars … do not identify any ground for judicial review. …
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.
…’
It appears to me that in dismissing the application the learned Federal Magistrate exercised the power conferred on him by rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (‘the Federal Magistrates Court Rules’), which relevantly provided:
‘44.12(1)At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; …
…
(2)To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.’
Under rule 16.05(2)(a) of the Federal Magistrates Court Rules, the Federal Magistrates Court of Australia may set aside its judgment or order after it has been entered if the order was made in the absence of a party.
No application has apparently been made by the appellant for an order in the Federal Magistrates Court seeking to have the orders of Riethmuller FM of 27 June 2007 set aside. Rather, the appellant has filed a Notice of Appeal in this Court on 17 July 2007.
The appellant, who has described himself as ‘the applicant’ in the Notice of Appeal, has not sought leave to appeal from the judgment of Riethmuller FM on the basis that the learned Federal Magistrate’s judgment was interlocutory within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’).
The Notice of Appeal, filed 17 July 2007, records as the grounds of appeal simply:
‘(a)The decision of the tribunal was made without jurisdiction or is affected by an error of jurisdiction;
(b) The decision was a denial of procedural fairness and natural justice.
PARTICULARS
The Federal Magistrate has denied me the chance of presenting my case by refusing my application for an adjournment, which was a genuine application.’
Somewhat curiously, the expression of the grounds of appeal and the particulars were to all intents and purposes identical with the grounds of appeal and particulars provided in the Notice of Appeal in another case recently before the Court concerning a Malaysian citizen, namely, MZXOM v Minister for Immigration and Citizenship [2007] FCA 1715.
On 17 July 2007 an affidavit apparently sworn by the appellant was filed in this Court, but such affidavit has not been read.
On 24 July 2007 the then respondent, now the first respondent, filed an appearance in this Court. Earlier today I ordered that the Tribunal be added as a second respondent, and Mr Carroll of the Australian Government Solicitor’s office has indicated that he will arrange for a submitting appearance, except in respect of costs, to be filed promptly on behalf of the second respondent.
On 31 August 2007 the first respondent filed a Notice of Objection to Competency in accordance with Order 52 rule 18 of the Federal Court Rules (‘the Rules’). Order 52 rule 18 relevantly provides:
‘18(1)A respondent may move on notice at any time for an order dismissing an appeal as incompetent.
(2)Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.’
The Notice of Objection to Competency recorded the first respondent’s objection to competency on the following grounds:
‘1.The judgment of the Honourable Federal Magistrate Riethmuller handed down on 27 June 2007 is an interlocutory judgment;
2.Pursuant to s.24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal cannot be brought from a judgment of the Federal Magistrates Court that is an interlocutory judgment unless the Court or a Judge gives leave to appeal; and
3.Pursuant to Order 52 rule 5 of the Federal Court Rules, such leave must be sought within 21 days of pronouncement of the interlocutory judgment; and
4. No such leave has been sought or obtained; and
5. No extension of time for the seeking of such leave has been obtained.’
The first respondent submits that the appeal should be dismissed as incompetent for the reasons indicated in the Notice of Objection to Competency. The first respondent further submits that the appellant should not be granted leave to appeal from the orders of the Federal Magistrates Court made on 27 June 2007. The first respondent also relies upon the significant non-compliance with the requisite time limits for an application for constitutional writ relief, and also upon the principles of estoppel enunciated in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589.
The first respondent submits that the appeal should be dismissed with costs.
In the course of his oral submissions, the appellant had no real answer to the issues raised by the Notice of Objection to Competency. He indicated that he was not aware of the relevant legal provisions and now realised that it was his fault.
When asked by me to explain why it was that he failed to appear when invited to do so before the Tribunal in relation to his application for review of the Minister’s delegate’s decision of 11 November 2002, he indicated that he was at that time without proof of the problems which he had encountered in Malaysia.
When asked, further, to explain why he did not appear before the Federal Magistrates Court in respect of his first application for constitutional writ relief on 6 September 2006 and 2 November 2006 he proffered a similar response to that given in respect of his non-attendance before the Tribunal.
When asked to explain his absence before the Federal Magistrates Court on the hearing of his second application for constitutional writ relief on 27 June 2007, he simply indicated that he was sick on that day. As the learned Federal Magistrate observed, the medical certificate which the appellant had provided by facsimile the day before the hearing in the Federal Magistrates Court disclosed no illness which the appellant was suffering. It merely indicated that the appellant was receiving medical treatment.
When asked by me to indicate the nature of his illness, the appellant said that he had a fever and was suffering from, if I heard it correctly, a tummy ache. He indicated that he was not prescribed any medicine but that he was given a natural herb which, when taken with a solution of 50 per cent water and 50 per cent orange juice, was good for a cold.
It seems to me that if the appellant was well enough to attend the Moreland Medical Clinic to obtain a certificate on 26 June 2007, referrable to his ability to work on that day and the following day, he could not possibly assert that illness precluded him from attending the hearing before the learned Federal Magistrate on 27 June 2007.
As an aside, I would observe that notwithstanding the medical certificate dealing with his unfitness for work on 26 and 27 June, the appellant says that he was not, at that time, working.
The appellant has appeared on the hearing of his appeal. He suggests that it was not until he had contact with a pastor that he realised that he had any hope. Until then, he took the view that he had no proof available to him to support his claim to refugee status. The reference to the pastor would appear to be a reference to a minister and a Roman Catholic priest with whom he had contact in late October and early November this year. In the course of his submissions, he referred to references which he had obtained from such persons which bore date 30 October 2007 and 7 November 2007.
The appellant concluded his submissions by saying words to the effect, ‘Kindly give me another opportunity to express what I encountered. This country needs skilled people. I can study. Give me an opportunity’.
It goes without saying that neither the Federal Magistrate who considered the appellant’s first application in the Federal Magistrates Court filed 3 August 2006 nor the magistrate hearing the appellant’s second application in the Federal Magistrates Court filed 3 May 2007 nor, for that matter, this Court, can offer the appellant merits review of the Minister’s delegate’s decision or of the decision of the Tribunal handed down on 3 October 2003 in respect of the appellant’s application for review filed 12 December 2002.
It is important to remember that proceedings before the Tribunal are inquisitorial rather than adversarial. The Tribunal Member conducting an inquiry is obliged to be fair. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as the ‘Refugees Convention’) had been made out.
The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon (see per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] – [58]). To like effect, Gleeson CJ and Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [40]:
‘[40] More than once it has been said that the proceedings in the tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. …’ (footnote omitted)
During the course of his oral submissions the appellant inquired whether there were any other alternatives available to him which would allow me to consider his claims. It does not seem to me to be appropriate for the Court to enter the arena and take over the conduct of the appellant’s case for him. However, I have allowed the appellant to address me on the matters which have been summarised above with a view to ensuring that no relevant injustice is done.
The appeal is plainly one which does not lie without a grant of leave to appeal, the decision of the learned Federal Magistrate of 27 June 2007 having been an interlocutory decision.
Were an application for leave to appeal from that decision to have been before the Court today, which included a prayer for relief that compliance with the time limit fixed in Order 52 rule 5(2) of the Rules be dispensed with, I would not in the circumstances of this case have considered that a grant of leave to appeal would have been appropriate. Nothing has been said to demonstrate that the decision of the learned Federal Magistrate was attended with sufficient doubt to warrant its reconsideration or that substantial injustice would result if leave to appeal were refused. It was open to the learned Federal Magistrate to dismiss the application filed 3 May 2007 as he did and I would not be disposed to allow an appeal from that decision to now be brought.
It is not inappropriate to make a brief observation concerning the appellant’s claim to refugee status. His non-appearance before the Tribunal and his subsequent delay in taking any action in respect of that decision and his non-attendance on the hearing of his applications for constitutional writ relief from that decision do not speak well for him. As indicated above, it was for him to establish that the claims which he made in his application for a protection visa warranted a determination by the Tribunal that it was satisfied that the relevant criteria for his visa had been satisfied. It seems to me that the case which lies behind the present appeal is quite unmeritorious.
In my opinion the appeal should be dismissed as incompetent.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 6 December 2007
The Appellant appeared in person. Solicitor for the First Respondent G Carroll of Australian Government Solicitor. The Second Respondent entered a submitting appearance. Date of Hearing: 9 November 2007 Date of Judgment: 9 November 2007
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