MZZWB v Minister for Immigration and Border Protection

[2014] FCA 1346

FEDERAL COURT OF AUSTRALIA

MZZWB v Minister for Immigration and Border Protection [2014] FCA 1346

Citation:	MZZWB v Minister for Immigration and Border Protection [2014] FCA 1346
Appeal from:	MZZWB & Anor v Minister for Immigration & Anor [2014] FCCA 1879
Parties:	MZZWB and MZZWC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 482 of 2014
Judge:	NORTH J
Date of judgment:	27 November 2014
Legislation:	Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i), (2)
Date of hearing:	27 November 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	12
Counsel for the Appellants:	There was no appearance by the appellant
Counsel for the First Respondent:	Mr L Brown
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 482 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZWB
First Appellant

MZZWC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	27 NOVEMBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed pursuant to Rule 36.75 of the Federal Court Rules 2011 (Cth).

2.The appellants pay the first respondent's costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 482 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZWB
First Appellant

MZZWC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	27 NOVEMBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Circuit Court, delivered on 31 July 2014. The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 24 October 2013.  The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellants Protection visas.

2. The appellants failed to appear at the hearing of the appeal.  I am satisfied, on the balance of probabilities, that they have had notice of the hearing date.  That inference can be drawn from the following circumstances.

3. It appears from the Court’s file that the appellants were notified of the hearing date on 29 September 2014 by a letter from the Court (the hearing letter). The copy letter retained on the Court file indicated that the hearing letter was sent to the first appellant at 6/84 Seventh Street, Mildura, Victoria, 3500 (the Seventh Street address). 

4. The Seventh Street address is the address of which the appellants notified the Refugee Review Tribunal, in their application for review dated 3 May 2013, as the address at which they then resided. In the same application, the appellants indicated that their postal address was PO Box 1310, Centro Plaza, Mildura, Victoria, 3501 (the PO Box address). The PO Box address was used by the Refugee Review Tribunal to notify the appellants of the hearing before the Tribunal in a letter dated 12 August 2013. The first appellant appeared at the hearing before the Tribunal and it is reasonable to assume that he did so in response to that letter.

5. The address for service provided by the appellants in the notice of appeal is the PO Box address.  The address recorded for the appellants in the Court’s database is the address on the notice of appeal.

6. From a note on the Court file it seems that it is likely that the Court’s hearing letter was also sent to the PO Box address on 29 September 2014.

7. Neither of these letters has been returned.

8. On 2 October 2014 the solicitors for the first respondent wrote to the appellants at the Seventh Street address confirming the date of the hearing.

9. The solicitors for the first respondent sent correspondence to the appellants on 3 November 2014, 20 November 2014 and 24 November 2014 containing respectively, the court book, the first respondent’s outline of submissions, and the list of authorities.  The three letters were sent to the appellants at the PO Box address. The letter of 20 November 2014, enclosing the first respondent’s outline of submissions, notified the appellants of the hearing date within the outline itself.  None of these letters have been returned.

10. The notice of appeal indicates a mobile phone number of the appellants. In section 18 of the original application for a protection visa, a further mobile phone number is indicated. At the suggestion of the Court, counsel for the first respondent phoned both of those numbers whilst the hearing was stood down for the purpose, and neither was answered.

11. Although it is not certain from the material that the appellants have received notice of today’s hearing, it is sufficiently probable to proceed on the basis that they have. The appellants’ right to seek to reopen the case is preserved under Rule 36.75(2) of the Federal Court Rules 2011 (Cth) in the event that they have not received notice of today’s hearing.

12. Consequently, there will be an order under Rule 36.75(1)(a)(i) Federal Court Rules 2011 (Cth) that the appeal is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        10 December 2014