Parmakovski, Dimce v Minister for Immigration & Ethnic Affairs

[1996] FCA 261

CATCHWORDS

FEDERAL COURT RULES - application for adjournment of directions hearing -Order 10 r(3)2  of Federal Court Rules - failure of applicant to attend directions hearing - whether application should be dismissed.

DIMCE PARMAKOVSKI v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
No NG 108 of 1996

Davies J
22 April 1996
Sydney

IN THE FEDERAL COURT OF AUSTRALIA  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY  )  No NG 108 of 1996
  )     
GENERAL DIVISION  )     

BETWEEN:          DIMCE PARMAKOVSKI

Applicant

AND:                   MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

Coram:        Davies J.
Date:          22 April 1996
Place:         Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

NOTE:        Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY  )  No NG 108 of 1996
  )     
GENERAL DIVISION  )     

BETWEEN:          DIMCE PARMAKOVSKI

Applicant

AND:                   MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

Coram:        Davies J.
Date:          22 April 1996
Place:         Sydney

REASONS FOR JUDGMENT

This application seeks orders of review with respect to a decision of the Refugee Review Tribunal ("the Tribunal") made on 21 November 1995.  The Tribunal held that Mr Dimce Parmakovski did not have the status of refugee and was therefore not entitled to a protection visa. 

The application was filed on 13 February 1996 and was signed by the applicant personally, the date of signature being expressed to be 29 January 1996.  The return time and date of the application was 9:30 a.m. on 27 March 1996.  On that date, the applicant did not appear, either in person or by representative.  The applicant had written to the respondent's solicitor, the Australian Government Solicitor, by letter
dated 23 February 1996 to say that he had left Australia on 22 October 1995, was awaiting a visa from the Australian Embassy, Belgrade and, if he received it, would be able to appear at the directions hearing.  Subsequently, the applicant wrote to the Registrar of the Federal Court of Australia by letter dated 15 March 1996 to say, inter alia:-

"I have so much problems at my home in Macedonia, so that I cannot travel back to Australia and arrive in a good time.

Therefore I turn to you asking ADJOURNMENT of hearing, and your information of new appointment to my domicile in Macedonia."

At the directions hearing, Ms Elizabeth Warner, solicitor for the respondent, asked that the application be dismissed under Order 10 r3(2) of the Federal Court Rules, which provides:-

"3. (2)  If no applicant appears before the Court on a directions hearing the Court may dismiss the application or make any other order which it thinks proper."

I have considered the reasons for decision given by the Tribunal on 17 November 1995.  The Tribunal had arranged a hearing for 8 November 1995.  On 19 October 1995, the Tribunal received a completed standard form signed by the applicant dated 18 October 1995.  The form stated that the applicant wished to attend the hearing on 8 November 1995.  The applicant, in fact, departed Australia on 22 October 1995 without making any further contact with the Tribunal.  The applicant did not attend the Tribunal hearing or offer any explanation for his absence.

The Tribunal considered the applicant's entitlement to a visa.  By applications lodged on 14 June 1994, the applicant had sought recognition as a refugee and the grant of a Protection (Permanent) Entry Permit.  On 1 September 1994, before these matters had been resolved, the Migration Reform Act 1992 (Cth), introduced into the Migration Act 1958 (Cth) the following provision which is now numbered s.36 of the Migration Act:-

"36. (1)There is a class of visas to be known as protection visas.

(2)  A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.".

Section 39 of the Migration Reform Act provided:-

"39.  The application for a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 November 1993 that was made, and not finally determined (within the meaning of the Principal Act), before that date is taken, on that date, to be an application for a protection visa (within the meaning of the Principal Act as in force on that date)."

Accordingly, the primary decision made in April 1995 and the subsequent decision of the Tribunal dealt with the applicant's case as if it were an application for a protection visa in accordance with s.36 of the Migration Act.

In the light of s.39 of the Migration Reform Act, there can be no ground for argument that the applicant had an accrued right which continued, despite the legislative amendments, by virtue of s.8 of the Acts Interpretation Act 1901 (Cth). See Singh v Minister for Immigration & Ethnic Affairs (unreported, von Doussa J, 31 January 1996); Mahboob v Minister for Immigration & Ethnic Affairs (unreported, Lehane J, 15 March 1996).
When the Tribunal made its decision, one of the criteria for the grant of a Protection (Residents) Visa, which was the relevant protection visa for which the applicant was deemed by s.39 of the Migration Reform Act to have applied, was that set out in para 866.411 of the Migration Regulations which specified that:-

"The applicant must be in the migration zone."

Section 5(1) of the Migration Act defines "migration zone" to mean:-

"... the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

(a)land that is part of a State or Territory at mean low water; and

(b)sea within the limits of both a State or a Territory and a port; and

(c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port;"

As the applicant was not in the "migration zone" when the Tribunal made its decision, the applicant did not satisfy one of the criteria prescribed for the grant of a protection visa.  He was therefore not entitled to be granted the visa.  It follows that the Tribunal was correct in dismissing the application.

The Tribunal also considered the criteria specified in para 866.221 of the Migration Regulations, namely:-

"866.221  The Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention."

The Tribunal concluded, on the material before it, that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.  The Tribunal concluded that "there is no evidence to show that the Applicant has a real chance of persecution for Convention reasons upon return to Macedonia." 

I need not deal with the reasons given by the Tribunal for this conclusion.  It is sufficient to say that I have not, from a reading of the Tribunal's reasons, identified any error of law in its approach.

In all the circumstances, it seems to me that I should accept the submission of the solicitor for the respondent that the application should be dismissed.  On the face of the reasons for decision given by the Tribunal, the applicant has no prospects of success.  This is because the applicant did not appear before the Tribunal to support his case that he was a person who had the status of a refugee and because he was not, at the time the Tribunal made its decision, within the Australian migration zone.

It is, moreover, entirely unsatisfactory that the applicant should come to this Court, which has only the limited functions specified in s.476 of the Migration Act including the function of reviewing a decision for error of law, without specifying what is the matter, within the jurisdiction of the Court, of which complaint is made.  There are too many applications lodged in which it is clear that applicants merely wish to re-litigate the merits of their claim to be recognised as refugees.  In the present case, the situation is that the applicant has specified no matter in the application lodged with the Court which identifies a matter within the jurisdiction of the Court.  Moreover, the decision sought to be reviewed appears, on its face, to contain no error and the
applicant has not appeared at the directions hearing either personally or by representative, merely seeking an adjournment to some unspecified time in the future.

In my opinion, this is a case in which it is proper to refuse the application for an adjournment sought by the letter dated 15 March 1996 and proper to exercise the power conferred by Order 10, r3(2) of the Federal Court Rules. 

Accordingly, the application will be dismissed with costs.

I certify that this and the 5 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  22 April 1996

Counsel for the respondent:                E.N. Warner (Solicitor)   

Solicitor for the respondent:               Australian Government Solicitor

Date of hearing:  27 March 1996

Date of judgment:  22 April 1996