MZYEZ v Minister for Immigration

[2010] FMCA 202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYEZ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 202

MIGRATION – Applicant failed to appear – application dismissed.

APPLICATION TO REINSTATE – Whether sufficient explanation – second criteria – whether applicant has arguable case.

Federal Magistrates Court Rules 2001, r.13.03C(1)(c)

SZBEW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 999
NAFG vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389

Applicant: MZYEZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 725 of 2009

Judgment of: Turner FM

Hearing date: 27 January 2010

Date of Last Submission: 27 January 2010

Delivered at: Melbourne

Delivered on: 27 January 2010

REPRESENTATION

The Applicant appeared In Person with the assistance of a Punjabi interpreter

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. That the application in a case for the reinstatement filed on

   
   

   30 November 2009 is dismissed.

2. The applicant pay the first respondent’s costs of $1000.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 725 of 2009

MZYEZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex-tempore and Revised)

1. This is an application to reinstate the application filed on 12 June 2009, and the amended application filed on 23 September 2009. The applications were dismissed on 30 November 2009, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001, which provides that:

   If a party to the proceeding is absent from a hearing, the Court may, if the absent party is an applicant, dismiss the application. 

2. The applicant failed to attend the hearing on 30 November 2009, and therefore the applications were dismissed and an order made that the applicant pay the respondent’s costs. The applicant has filed an affidavit stating that he was outside court on 30 November 2009 at approximately 9.45am. The hearing was listed for 10am on that day. The matter was called outside Court at 10am. The applicant has stated to Court today that he did not hear that matter called with pseudonym MZYEZ. The applications were therefore dismissed on that day.  The Court is satisfied that the applicant was outside court 2C on 30 November 2009.

3. The Court is also satisfied that the applicant’s pseudonym was called outside Court 2C as “MZYEZ”. The applicant must have been aware that MZYEZ was the pseudonym given to him in the matter as the first respondent filed a notice of address on 22 June 2009, which refers to the applicant as MZYEZ. The first respondent filed a response on 25 June 2009, which refers to the applicant as MZYEZ. Registrar Allaway issued a decision on 5 August 2009, which refers to the applicant as MZYEZ. A copy of the Court book was served on the applicant on 14 July 2009, and the cover of the Court book shows the applicant being referred to as MZYEZ. 

4. The first respondent’s outline of submissions refers to the applicant as MZYEZ, as does the first respondent’s list of authorities. Today, a copy of a letter to the applicant from DLA Phillips Fox, the solicitors for the first respondent, has been handed to the Court and marked Exhibit R1. That letter is dated 6 August 2009, and shows the applicant’s reference to be MZYEZ. A further letter was handed to the Court today, and marked Exhibit R2, it is dated 18 December 2009. That letter to the applicant states that his reference is MZYEZ. The applicant’s amended application states his pseudonym as being MZYEZ. The applicant stated to the Court today that he prepared that document and signed it.

5. To have this matter reinstated, the applicant must satisfy the Court first that there is a sufficient explanation for his non-attendance on

   
   

   30 November 2009. The court refers to the decisions in SZBEW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 999 by Driver FM, especially in paragraph 6. The Court is satisfied that the matter was called outside court on

   
   

   30 November 2009. The Court is not satisfied that the applicant, failing to hear his matter called, provided sufficient explanation for his

   
   

   non-attendance.

6. If the applicant satisfies the first criteria, the second criteria is whether the applicant has an arguable case. The court refers to two decisions, the first by Barnes FM in NAFG vMinister for Immigration & Multicultural & Indigenous Affairs (No.2) [2003] FMCA 558, which was upheld on appeal by Jacobson J in NAFG vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389, which established the second criteria that has to be satisfied. As the applicant has not satisfied the first criteria, the Court is not required to consider whether the applicant has an arguable case. The application for reinstatement is therefore dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Erin Firns

Date:  24 March 2010