FEDERAL COURT OF AUSTRALIA

MZWOG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1843

MZWOG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1738 referred to

Prashar v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 197 followed

SZEUU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1620 referred to

MZWOG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 579 OF 2005

SUNDBERG J

16 DECEMBER 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appellant’s motion notice of which was filed on 29 November 2005 be dismissed.

2.                  The appellant pay the first respondent’s costs of and incidental to the motion.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE BACKGROUND

1                     On 8 November 2005, I dismissed the appellant’s appeal from the decision of the Federal Magistrates Court (the dismissal).  Though I delivered my reasons ex tempore, they now appear as MZWOG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1738 (the earlier reasons).  The nature of the appeal is described at [1] of the earlier reasons.

2                     At [2] of the earlier reasons I said

“The appellant did not appear at the hearing of the appeal. There is no doubt that he was aware that the appeal was to be heard today. He had, however, filed contentions of fact and law which I have considered. I acceded to the Minister’s application that I proceed with the hearing of the appeal pursuant to order 52, rule 38A(1)(d). In the circumstances the appellant has been heard, though he has not availed himself of the opportunity to support his written contentions orally.”

3                     Order 52, rule 38A(1)(d) of the Rules of Court relevantly provides

“If a party is absent when an appeal is called on for hearing, the Court may:

…

 proceed with the hearing, either generally or in relation to any claim for relief in the appeal.”

THE MOTION

4                     On 29 November 2005, the appellant filed a notice of motion which, in view of the contents of the affidavit in support, I will treat as seeking the setting aside of the dismissal pursuant to O 52, r 38A(2)(a).  That rule relevantly provides

“If the Court proceeds with the hearing under paragraph (1)(d), the Court may:

set aside or vary any order made after so proceeding ….”

5                     The ground upon which that relief is sought is stated in the affidavit in support.  That affidavit is as follows:

“1.       I am the applicant in these proceedings.

2.         On 8 November 2005 my matter was listed before Justice Sundberg of the Federal Court.  I was not able to attend this hearing.

3.         On 4 November 2005 I was arrested and charged with breaching an intervention order.  I was remanded at Dandenong Police Station and Melbourne Assessment Prison until my case went to court on 21 November 2005.

4.         On 7 November 2005 I asked for one of the police officers to contact the Federal Court and explain that I would be unable to attend my hearing.  I do not recall the name of this police officer.  He told me that he would do this.

5.         My matter was heard at Dandenong Magistrates’ Court on 21 November 2005.  On this day I was sentenced to a community based order and released from custody.

6.         When I returned home I opened a letter from [solicitors for the Minister] dated 14 November 2005.  This letter enclosed a copy of the orders made by Justice Sundberg on 8 November 2005 dismissing my case.  This was the first time that I knew my case had been dismissed.

7.         If I had been at liberty on 8 November 2005 I would have attended the hearing.

8.         I am very anxious and worried about what has occurred.  I am also feeling very depressed.  I am fearful of returning to India and fear for my life.

9.         I wish for an opportunity to be able to put my case to the Court and develop arguments.”

Neither the Court nor solicitors for the Minister were informed before the hearing that the appellant was in custody.

6                     At the conclusion of the hearing of the motion, I ordered that the motion be dismissed with costs and indicated that I would give my reasons today.

THE LAW TO BE APPLIED

7                     In Prashar v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 197, Katz J, with whom Branson J and Mansfield J agreed, said at [11] that O 52, r 38A(2)(a)

“… does not specify any criteria for the exercise by the Court of the power conferred on it by that provision.  However, the considerations which, in my view, would be relevant in the exercise of that power would include at least whether the moving party has provided an acceptable explanation for that party’s absence when the appeal was called on for hearing and the strength of that party’s case on the appeal if the order dismissing the appeal were to be set aside.”

I have adopted that course.  Tamberlin J adopted a similar course in SZEUU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1620 – though without reference to Prashar.

THE APPELLANT’S EXPLANATION

8                     The Minister did not challenge the explanation in the affidavit quoted at [5], and I will accept it.

THE APPELLANT’S CASE

9                     The appellant was under the misapprehension that his motion would succeed if he could adequately explain his failure to appear at the hearing of the appeal.  I explained to him that his motion would fail if he could not also show that there was some point in setting aside the dismissal.  To that end, I repeatedly asked him to put to me what he wished to say, in support of the grounds in his notice of appeal (which I explained to him), in addition to his written submissions that I considered in the earlier reasons.  I also adjourned the hearing of the motion for a short period to allow him to collect his thoughts.

10                  The appellant was unable to say anything beyond repeating the matters included in his written submissions.  He also indicated that he wished to submit further documents – which he would require time to obtain.  I explained to him that even if I were to give him that time, I could not receive those documents as it is not the Court’s role in matters such as these to enter into factual enquiries.  It is apparent that had the appellant appeared at the hearing of the appeal he would not have said anything that was not contained in his written submissions.  Those submissions have been dealt with in the earlier reasons, and nothing was said at the hearing of the motion that casts any doubt on them or requires them to be revisited.

Associate:

Dated:              16 December 2005