MZYAN v Minister for Immigration - [2008] FMCA 1729

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYAN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1729

MIGRATION – Application to reinstate – non appearance at original hearing on alleged medical grounds – medical certificate deficient – sufficient explanation for non attendance no shown – no arguable case – no useful purpose in reinstating – bias not shown – application dismissed.

Federal Court Rules, O.52 r.38A
Federal Magistrates Court Rules 2001, r.13.03, 16.05

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
MZXJN v Minister for Immigration & Multicultural Affairs [2006] FCA 1624
NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17
SZBEW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 999
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
NAFG v Minister for Immigration (No 2) [2003] FMCA 558
M60 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 429
NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389

Applicant:

MZYAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 559 of 2008

Judgment of:

Turner FM

Hearing date:

18 December 2008

Date of Last Submission:

18 December 2008

Delivered at:

Melbourne

Delivered on:

18 December 2008

REPRESENTATION

The Applicant:

Appearing on his own behalf

Counsel for the First Respondent:

Mr Wee

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

The interim application for reinstatement filed 17 November 2008 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 559 of 2008

MZYAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

This matter originally came on for hearing on 3 November 2008.

The applicant sent a letter to the Court on 2 November 2008 stating:
“My case hearing is on 3 November 2008. I am sick, unable to attend the hearing. I enclose a medical certificate for your attention.”
The medical certificate states that the applicant is suffering from :
“a personal illness (?)colitis, possible infective, and is unfit for work from 03/11/08 to 04/11/08 inclusive.”
In the case of NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at paragraph 6 Justice Lindgren stated:
“The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.”
His Honour did not accept that the medical condition referred to would make the sufferer unable to attend Court, and noted that apparently each applicant there was able to attend upon the medical practitioner.
His Honour refused the application for an adjournment and dismissed the appeal under O.52 r.38A of the Federal Court Rules. The Court notes that here the applicant attended his medical practitioner on the day before the hearing
The same approach was adopted by Justice Middleton in MZXJN v Minister for Immigration & Multicultural Affairs [2006] FCA 1624 at paragraph 13. His Honour followed the decision in NAKX and dismissed the appeal with costs.
Furthermore, in NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17, the Full Federal Court refused to grant an appellant an adjournment on the basis that the medical certificate provided in support did not identify the medical condition, or explain why it would prevent the appellant from appearing.
The Court refers to paragraphs 24 and 25 of that judgment. The Full Court rejected the application for an adjournment and dismissed the appeal with costs.
In the present case the medical certificate states that the medical condition was, “(?)colitis, possible infective”. The certificate did not explain why the condition would prevent the applicant from attending Court. As stated above, the applicant was able to attend on a medical practitioner the day before the hearing, whilst apparently suffering from that condition.
The applicant failed to attend Court on 3 November 2008 and the Court dismissed the application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”). That rule now appears as r.13.03C(1)(c).
“13.03C Default of appearance of a party
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:
…
(c) if the absent party is an applicant – dismiss the application;
…”
The applicant filed an application on 17 November 2008 to reinstate his original application on the basis that he sent a medical certificate to the Court and that the decision to dismiss the applicant was wrong.

In his affidavit in support, the applicant alleges bias by this Court. There is nothing to suggest that a bystander in this Court would have apprehended that there was bias against the applicant. Nothing has been shown to the Court to establish bias and that allegation is rejected.
The application was dismissed in accordance with the law, and the rules of this Court. As stated by Federal Magistrate Driver in SZBEW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 999 at paragraph 6:
“The reinstatement of an application following dismissal for non appearance should not occur as a matter of course.

The authorities indicate that exceptional reasons need to be advanced. I would need at least to be satisfied that there was a sufficient explanation for the non attendance of the applicant at court on 15 February 2005. I would also need to be satisfied that there would be some useful purpose to be served in reinstating the application.”
The Court does not find an exceptional reason to be advanced in this case. Also, there has not been sufficient explanation for the failure to attend Court on 3 November 2008. The medical certificate provided was deficient.
Even if a sufficient explanation had been given, the Court must then be convinced that there is an arguable case. It is clear from the decision of the Tribunal that it rejected much of the evidence of the applicant.
The Tribunal is free to accept or reject evidence as it sees fit. Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464.
The applicant complains that the Tribunal did not rely on particular country information provided to it. The use and choice of country information is a matter for the Tribunal.
The applicant complains that the Tribunal found the persecution did not have an official quality. The Tribunal found as a matter of fact that no persecution was proved (Court Book 211.8). There was therefore no requirement for the Tribunal to go on and make a finding as to whether or not the persecution had an official quality.
The applicant alleges that the Tribunal failed to consider whether the motive for the harm threatened, was because of a political opinion held or imputed to him and his family. That ground is incorrect.
The Tribunal considered that contention at (Court Book page 216 para 56 line 5) and rejected it.
In NAFG v Minister for Immigration (No 2) [2003] FMCA 558 at paragraph 5 Federal Magistrate Barnes applied a decision of Federal Magistrate Phipps in M60 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 429 and stated that:
“In order to set aside a judgment...first there needs to be an explanation for the failure to appear, and secondly, it needs to be shown that there is an arguable case.” (emphasis added)
On appeal in NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389 at paragraph 8 Justice Jacobson referred to the decision of Federal Magistrate Barnes in paragraph 5 as “being the principles which deal with the power under r.16.05(2)(a)” of this Court’s Rules to vary an order made in the absence of a party.
The applicant says the decision of the Tribunal is unjustified.
The Court finds that the Tribunal accepted or rejected evidence as a matter of its discretion. The applicant cannot review findings of fact by the Tribunal.
The applicant says the Tribunal was unaware of the political situation in Sri Lanka. The decision shows that to be incorrect. The Tribunal considered the country information that it found relevant.
The applicant contends that the Tribunal misunderstood facts. He says that the Tribunal had no information about the political situation in Sri Lanka. Clearly the Tribunal had before it independent country information. The complaints of the applicant relate to findings of fact by the Tribunal. There can be no review of findings of fact by the Tribunal open on the material before it.
The applicant alleges that the decision “is imaginary”. He said he only answered questions asked of him. An applicant must establish his case before the Tribunal. There is no requirement for the Tribunal to establish the applicant’s case for him.
The applicant says he had no opportunity to put facts relating to the Perth Paradise Project to the Tribunal. It is clear from passages throughout the Tribunal’s decision that the Tribunal had extensive material about the Perth Paradise Project before it. The Court refers to (Court Book page 204 line 2; page 208 paragraph 37 line 5; and paragraph 38 line 2; on page 210, paragraph 42, halfway through that paragraph; and on page 213, paragraph 48, halfway through that paragraph). The Tribunal considered extensively the information relating to the Perth Paradise Project.
There is nothing to show that the Tribunal prevented the applicant from putting information he wanted to put to the Tribunal. The applicant says the Tribunal did not ask questions about the Perth Paradise Project. Again the Court refers to the legal principle that an applicant must establish his case. Clearly the applicant was able to present material relating to the Perth Paradise Project to the Tribunal.
The applicant claims the decision of the Tribunal is not right, and questions findings of fact. There is no review available against findings of fact by the Tribunal. The Court is not satisfied that the Tribunal prevented the applicant from making submissions to it.
The applicant says that he was not aware that certain information was relevant and therefore he did not put it to the Tribunal. He then stated to the Court, “I had the opportunity to say what I wanted”, and also, “I said what I wanted to say”, and also, “I gave all the facts accurately to the Tribunal.”
The applicant says that his first witness statement differed from what he told the Tribunal. That does not show that the Tribunal made an error of law. He complains that the Tribunal did not accept certain facts. The Tribunal is free to accept or reject evidence Lee ante.
The applicant complains that the Tribunal said to him that he was contradicting his evidence. That does not establish an error of law by the Tribunal.
The applicant says that he was not in a good state of mind when he made his first statement, but that at the Tribunal, “I was in a good state of mind.” It has not been demonstrated that the applicant was not given a fair hearing. The Court is satisfied that the applicant had a full opportunity to put his case. After the hearing the Tribunal sent him a letter seeking clarification of evidence given by him.
The Court finds that the applicant has not shown an arguable case for review. Even if he was able to establish an arguable case, he has failed to establish a reasonable excuse for not attending the hearing on
3 November 2008. Therefore the applicant has failed to establish both matters which he needs to establish in order to have his application reinstated.
The Court finds that the grounds required for the orders of 3 November 2008, to be varied under r.16.05(2)(a), have not been made out.
The application to reinstate the applicant's application to this Court is dismissed.
The Minister has succeeded in opposing this application for reinstatement. The Minister is therefore entitled to ask for an order that the applicant pay the costs of the Minister. The amount sought is $1,500.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Kirra Vickerman

Date: 18 December 2008