MZYFE v Minister for Immigration
[2009] FMCA 952
•15 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYFE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 952 |
| MIGRATION – Application for judicial review – failure of applicant to attend hearing before Registrar – no adequate explanation for non-attendance – no merits to substantive application – application dismissed. |
| Migration Act 1958, s.476 Federal Magistrates Court Rules 2001, r.16.05 |
| Applicant: | MZYFE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 728 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 11 September 2009 |
| Date of Last Submission: | 11 September 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 15 October 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms P. Mitchell |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 728 of 2009
| MZYFE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 15 June 2009, the applicant filed an application for an order that the respondents show cause why remedy should not be granted under s.476 of the Migration Act 1958 (“the Act”) in respect of “the migration decision” of the second respondent dated 14 May 2009.
The application did not contain anything that could be said to constitute proper grounds for an application, other than the applicant’s desire to obtain a visa.
The applicant’s affidavit in support of his application, filed 15 June 2009, addressed various issues as to the applicant’s experiences in his home country, Bangladesh. The application was set down for hearing on 5 August 2009 when it was heard before Registrar Allaway.
It is clear from the affidavit by Philippa Jane Mitchell filed on
8 September 2009, on behalf of the first respondent, that the applicant was sent on 15 July 2009 a letter from Clayton Utz noting, inter alia, that the matter was listed for a first court date on 5 August 2009 at
2.00 pm, and that the applicant, or someone representing him, should attend. The letter also put the applicant on notice that the first respondent would seek orders that the applicant file and serve an amended application with proper particulars.
No response was made by the applicant to that letter, and the applicant did not attend on the first court date on 5 August 2009. On that date, Registrar Allaway dismissed the application because of the non-attendance of the applicant.
By application filed on 26 August 2009, the applicant seeks to set aside the decision of Registrar Allaway, and to have his application reinstated.
The affidavit in support of that application, likewise filed on 26 August 2009, states relevantly:
“The reason of not attending at court is just because of my illness. It’s a back pain that happens in winter. As because it is a back pain I did not need to see a doctor. As a result of not meeting with a doctor, I do not have a concret copy of my illness. Therefore, I pray and hope that you will consider my circumstances and give me a chance for an interview, and obliged thereby.”
When the matter was called on, I, at my own motion, asked for some further details about the applicant’s alleged indisposition. He informed me that he was sick on the trial date, and at home resting. He could barely walk, and was not able to contact the Court. He said that he should not have had to attend at Court on that day in the circumstances. He said that his illness started two days before the hearing date and then lasted for two days thereafter, being a total of five days illness.
Counsel for the Minister pointed out that rule 16.05 of the Federal Magistrates Court Rules 2001 (“the Rules”) requires that there be an explanation for non-attendance at Court before a matter is reinstated.
I accept counsel’s submission that no reasonable explanation had been provided.
I further accept the Minister’s submission that reinstatement is hopeless in any event because the application, as presently formulated, has no chance of success.
The applicant did not, in fact, attend the hearing before the Refugee Review Tribunal (“the Tribunal”) to which he was invited. I have had the benefit of reading a copy of the Tribunal’s reasons, which include a recitation of a statement which appears to me to be almost identical to the handwritten recitation in the affidavit filed in this proceeding.
I accept the submission made by counsel for the Minister that there is nothing in the decision which would give rise to any supposition that the applicant has even an arguable case.
Thus, even if I am in error in concluding that the application should not be reinstated, there would be no practical utility in doing so. The application will be dismissed with costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 15 October 2009
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