FEDERAL COURT OF AUSTRALIA

MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544

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

VID 199 OF 2006

SUNDBERG J

12 MAY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for an extension of time in which to apply for leave to appeal be granted.

2.                  The application for leave to appeal be dismissed.

3.                  The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

Background

1                     This is an application for an extension of time in which to file and serve an application for leave to appeal and an application for leave to appeal from a judgment of Riethmuller FM of 10 February 2006.

2                     This application comes with a somewhat lengthy history, which bears reciting. The applicant is a citizen of Lebanon. His application for a protection visa was refused by a delegate of the first respondent on 8 July 2004, following which he sought review of the decision in the Refugee Review Tribunal (the Tribunal). On 13 January 2005 the Tribunal sent the applicant a letter in which it stated it was unable to make a decision in his favour unless it was provided with further information. After being invited to attend a hearing before the Tribunal on 8 March 2005, the applicant did not appear. Other than his original visa application form, which contained scant information, the applicant submitted no materials in support of his claim before the Tribunal. The Tribunal affirmed the decision of the delegate not to grant a protection visa by decision made and signed on 9 March 2005. However the decision was not handed down until 1 April 2005. The applicant claims that on 9 March 2005 he requested a further hearing before the Tribunal which was refused.

3                     In an application before the Federal Magistrates Court heard on 19 December 2005 the applicant sought review of the decision of the Tribunal. The applicant did not appear before the Magistrate but had filed a medical certificate with the Registry which the Magistrate treated as an informal application for an adjournment. After considering the relevant authorities the Magistrate was not satisfied that there was sufficient basis for an adjournment.

4                     In the Magistrate’s Court the applicant made various claims in relation to the Tribunal’s findings of fact. The Magistrate found that the Tribunal did not have an obligation to investigate or make out a case for the applicant. On 19 December 2005 the Magistrate dismissed the application for review on the basis that the Tribunal’s findings were open to it on the material before it, and had made clear in its decision its reasons for adverse findings in respect of the claims.

5                     On 10 February 2006 an application was made to the Federal Magistrates Court to set aside the decision of 19 December 2005. The Magistrate treated this application as one made under rule 16.05(2)(a) of that Court’s Rules, which relates to setting aside a judgment when a party has not appeared. After consideration of the relevant authorities and circumstances, the Magistrate dismissed the application on 10 February 2006.

6                     A notice of appeal against that decision was filed on 2 March 2006. A notice of objection to competency was filed by the respondent on 10 March 2006 on the grounds that the orders subject to the appeal were interlocutory in nature. An application for extension of time to file and serve an application for leave to appeal and an application for leave to appeal were filed on 3 April 2006 along with an affidavit stating the grounds of the application.

Leave to appeal

7                     The applicant requires leave to appeal from the interlocutory order of the Magistrate made on 10 February 2006. He has also sought an extension of time in which to apply for leave. Since he does not have representation, I have assumed in his favour that he was unaware of the need to seek leave within a particular period. I will proceed directly to his application for leave.

8                     The relevant considerations for the Court in determining whether leave to appeal should be granted pursuant to s 24(1A) of the Federal Court of Australia Act 1976 are whether the decision sought to be appealed is attended by sufficient doubt to warrant its reconsideration, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

The Magistrate’s decision

9                     In the decision from which leave to appeal is sought, the Magistrate set out the affidavit of the applicant in support of the application to set aside the judgment of 19 December 2005. In summary that affidavit asserted:

·                 at about 9:00 am on 19 December 2005 the applicant had a medical certificate given to the Court stating that he was unfit to work during the period 18 December to 21 December

·                 he believed the Court would act on the certificate by adjourning the hearing to a date after 21 December

·                 he believes he was denied an opportunity to be heard as a result of the order made on 19 December dismissing his application

·                 on 9 March 2005 he requested the Tribunal to schedule another hearing because he had not attended the hearing on 8 March 1995, but was informed that his request was refused

·                 he believes he was denied natural justice as a result of not being given the opportunity to attend a hearing before the decision was handed down on 1 April 2005.

10                  The Magistrate noted that he had set out in his earlier reasons why he did not accept the medical certificate as a sufficient basis for an adjournment: there was no application for an adjournment; there was no request that the applicant attend by telephone; there were no details as to why he was unable to attend; the certificate only referred to the applicant’s usual occupation; and it provided no details of his ailments.

11                  The Magistrate then said that the applicant had not addressed the issues recorded at [10] in the affidavit referred to at [9].

12                  His Honour went on to consider whether the applicant had an arguable case, taking the view that if he had, the fact that he had not properly explained his absence from the hearing would not of itself justify refusing him a further hearing.

13                  The Magistrate then said that, for the reasons set out in his 19 December 2005 decision, he did not regard the matters raised by the applicant in his earlier written material as providing any basis for review. The applicant had not placed before him any further argument or material other than that the Tribunal had refused to provide him with another hearing date. His Honour noted that, whilst it was not deposed to in the applicant’s affidavit, he had said from the bar table that his failure to attend was an “oversight”.

14                  The Magistrate then noted:

·                 the Tribunal’s invitation to the applicant to attend the hearing on 8 March, advising him that if he did not attend and a postponement was not granted, the Tribunal may make a decision on his case without further notice

·                 that the applicant informed the Tribunal that he would be attending the hearing

·                 that he did not attend the hearing

·                 that as at the date on which it made its decision (9 March 2005) the applicant had not advised the Tribunal of any reason for his failure to attend

·                 that in the above circumstances, pursuant to s 426A of the Migration Act 1958, the Tribunal had decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

15                 His Honour then referred to the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] establishing the propriety of the course taken by the Tribunal, and continued:

“The Tribunal has provided the applicant with an opportunity to be heard and the applicant has failed to avail himself of that opportunity in circumstances where it could not be said that it was through no fault of his own (for example, a case where a person was in a motor vehicle accident on their way to the hearing or the like). It appears to me that it is within the discretion of the Tribunal to decide whether or not to set another time for hearing or proceed to make a decision.

It does not appear to me to be arguable that the Tribunal in proceeding to determine this matter, has committed a jurisdictional error.

In the circumstances I am not satisfied that the applicant has an arguable case and therefore it appears to me that there is no purpose to be served in setting aside my earlier orders. This, taken with the lack of detail of explanation for the non‑attendance before the court on the previous occasion, and the overall circumstances of the nature of and conduct of this case, leads me to refuse the current application.”

16                  In my view there is no error in the Magistrate’s decision. The Tribunal was possessed of a discretion to take the course it did. Nothing has been shown that impugns the exercise of the discretion. Its decision was authorised by s 426A.

17                  It is necessary however to refer to three matters referred to in the applicant’s affidavit in support of his application to set aside the Magistrate’s decision.

18                  The first is his attempt to distinguish VSAF. See [15] above. He says that in that case the applicant “simply announced that he would not be attending” the Tribunal hearing. That was not the present case. He said he would be attending, but “I could not attend” on 8 March 2005. He had made his request for a new date before the Tribunal handed down its decision on 1 April. Had he known he was not going to have a fresh hearing, he would have asked his adviser to make written submissions for him. In those circumstances, he says that s 426A was wrongly used against him.

19                  It is true that the facts of VSAF are unlike those of the present case. But the Magistrate was not relying on VSAF as a factually similar case. Rather it was to show that the course taken by the primary judge in VSAF was wrong, and that s 426A does authorise a Tribunal to make a decision without setting another hearing date for a person who has failed to appear at a hearing. It is to be noted that the applicant’s statement from the bar table was that his failure to attend the hearing was an “oversight”. It could not be said that his failure to attend was through no fault of his own. See VSAF at [13].

20                  In relation to the claim that the applicant had requested a new date before the Tribunal made its decision, it is important to recall the Tribunal’s statement that as at the date of its decision (9 March 2005), the applicant had not advised it of any reason for his failure to attend the scheduled hearing. There is no evidence of the applicant’s alleged request for another hearing before the decision was made. His own evidence is that the request was not made until 9 March, the day after the hearing, and on the very day the Tribunal made its decision.

21                  The matters the applicant has relied on in [18] do not establish a “wrong” use of s 426A.

22                  Then the applicant claims that in saying that he did not have an arguable case, the Magistrate failed to take into account a relevant consideration, namely that the applicant is a member of a particular persecuted social group in Lebanon and he will be persecuted if he were to return. This contention has no substance. The question was whether the applicant had an arguable case that the decision of the Tribunal in reliance on s 426A constituted a jurisdictional error. It was not whether he had an arguable case for being entitled to a protection visa.

23                  The third matter is the contention is that if he had been afforded another hearing he would have given more information as to why he was a refugee. However he does not say what he would have said, in addition to the material already before the Magistrate, that could have made a difference to the outcome.

Conclusion

24                  I am clearly of the opinion that the Magistrate’s decision is not attended by sufficient doubt to warrant its reconsideration by this Court. Having regard to my view that there is no prospect of success on any appeal, it is artificial to assume the contrary for the purposes of the second Décor consideration. The two Décor considerations are linked. See Décor at 399; Applicant VMAO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 427; Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 131 at [25] per Black CJ, Sundberg and Hely JJ.

25                  I will extend the time in which to apply for leave to appeal to the extent necessary, but will dismiss the application for leave with costs.

Associate:

Dated:              12 May 2006