FEDERAL COURT OF AUSTRALIA

MZXAU v Minister for Immigration and Multicultural Affairs [2006] FCA 1558

MZXAU and MZXAV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 510 OF 2006

RYAN J

9 NOVEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for an extension of time to appeal be dismissed.

2.                  The application for leave to appeal be refused.

3.                  The first respondent’s costs of the application to this Court be her costs in any application to the Federal Magistrates Court under r 16.05 of the Rules of that Court, provided that such an application be made within 28 days of this day.  In default of such an application to the Federal Magistrates Court, the first respondent’s costs of the proceedings in this Court be fixed in default of agreement and paid by the applicants.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time within which to seek leave and for leave to appeal from orders made by McInnes FM on 18 April 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 June 2006.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant a protection visa to the applicants. 

2                     The applicants are husband and wife and are citizens of the Philippines.  The second applicant, the wife, seeks to rely as a member of her husband’s family on his claims.  The applicants arrived in Australia on 26 September 2004 and lodged an application for a protection (class XA) visa on 3 November 2004.  The basis of the first applicant’s claim was an alleged fear of persecution by non-State agents because he had witnessed electoral fraud.  The Minister refused the application on 9 December 2004.  The applicants, on 22 December 2004, applied for review of the Minister’s decision by the Tribunal. 

The hearing at the Tribunal

3                     The Tribunal considered the applicants’ claims and found to be “problematic” the evidence on affidavit of Delfin Ting, the independent candidate whom the first applicant (“the applicant”) had supported in the May 2004 Congressional elections in the Philippines.  This was due to Mr Ting’s being a relative of the applicant, a fact which the applicant had failed to mention.  The Tribunal found that Mr Ting’s evidence contradicted the applicant’s statement that he had been Ting’s campaign manager and, instead, revealed that the applicant had only been a campaign worker.  Moreover, the Tribunal considered that the applicant had been unable fully to describe his activities as campaign manager and had only begun his involvement in the campaign 35 days before the election.  As a result, the Tribunal concluded that the applicant’s involvement had been as a volunteer, and it gave little weight to his evidence on this aspect of the case.

4                     The Tribunal rejected the applicants’ assertion that there was no protection available to them from authorities in the Philippines and regarded the authorities as being willing to take action even though the alleged perpetrators of the electoral fraud were still in power.  The Tribunal noted that the applicants had received tourist visas to travel to Australia on 14 July 2004 but did not depart the Philippines until 25 September 2004.  This delay, it considered, militated against the applicant’s claims about the gravity and intensity of threats to which he claimed to have been subjected.

5                     The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and so was unable to find that the applicants were persons to whom Australia has obligations under the Refugee Convention.  Accordingly, it affirmed the decision of the Minister. 

The Federal Magistrates Court hearing

6                     On 10 June 2005 the applicants applied to the Federal Magistrates Court for review of the Tribunal’s decision.  Before McInnes FM, the first ground of the applicants’ amended application was that the Tribunal had taken irrelevant information into account when arriving at its decision.  In essence, the applicants alleged that the Tribunal gave little weight to the evidence of Mr Ting, that it “missed the point of the claim” going to the role played by the applicant in the 2004 election, and it failed to consider the fact that the Philippine authorities could not afford to protect the applicants.  The second ground was that the Tribunal had not complied with the requirements of procedural fairness or natural justice.  At the heart of the applicant’s claim was the complaint that he had not been invited to comment on why he had remained in the Philippines for two months after obtaining his tourist visa before departing for Australia.

7                     The applicants failed to appear at the hearing in the Federal Magistrates Court on 18 April 2006 and the learned Federal Magistrate, as revealed by the transcript of that hearing, considered that, because of the non-appearance, even if he were to deliver an ex tempore judgment it would still be in the absence of the applicants and, as a result, would attract the application of r 16.05 of the Federal Magistrates Court Rules 2001.

8                     His Honour expressed the view that it may be necessary in complicated cases to examine the substance of an applicant’s claims in the absence of the applicant against the possibility that an application to set aside the judgment might be made in the future.  However, in the present case, he declined to conduct any such examination but summarily dismissed the application pursuant to r 13.03C of the Federal Magistrates Court Rules, and ordered that the applicants pay the Minister’s costs. 

Disposition of the appeal

9                     The applicants have filed an application in this Court for an extension of time within which to appeal, together with an affidavit in support of that application, a draft notice of appeal and an affidavit in support of an application for leave to appeal.  The applicants assert in their affidavit in support of the application for extension of time that, when the notice of date of hearing for the application by the Federal Magistrates Court was received, advice was sought from Victorian Legal Aid.  The applicants further allege that a solicitor from Victorian Legal Aid advised them that there was no need for them to appear on the date of the hearing as their application would be decided on the basis of earlier documents submitted to the Federal Magistrates Court. 

10                  The applicants also deposed that they could not recall when they had received a copy of the Federal Magistrates Court decision, and have only recently been told that they should have filed a notice of appeal within 21 days of the date on which the orders of McInnes FM were made.

11                  The applicants claim that the Federal Magistrate’s decision was based solely on their failure to appear on the day of the hearing and was made without consideration of the merits of their application.  The affidavit in support of the application for leave to appeal alleges that the Federal Magistrate in his decision failed to consider whether the Tribunal had taken into account an irrelevant consideration, by having regard to the fact that the applicant was related to the losing candidate, Mr Ting.

12                  The applicants further complain that McInnes FM failed to consider whether the Tribunal had accorded them procedural fairness or natural justice.  The essence of that complaint was that the Tribunal did not invite the applicants to comment on why they had taken some time to leave the Philippines, but drew an adverse inference from that delay without giving the applicants particulars of the information on which it proposed to base that inference. 

13                  In my view, the present applications for an extension of time and for leave to appeal are misconceived.  It is clear that the orders of McInnes FM, in effect, involved a summary dismissal of the applicants’ appeal and were interlocutory in nature;  eg, Rana v The University of South Australia (2004) 136 FCR 344.  In the ordinary course, therefore, the applicants would require leave to appeal for which they would have to show that, in all the circumstances, the decision, in this case that of McInnes FM of 18 April 2006, is attended by sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would result if leave were refused, supposing the decision below to be wrong;  see Decor Corporation v Dart Industries Inc (1991) 33 FCR 397 where a Full Court of this Court effectively applied the test formulated by a Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Limited [1978] VR 431.

14                  I am prepared to assume that, if the decision of McInnes FM were wrong, the applicants would suffer a substantial injustice as a result of the striking out of their application for review of the Tribunal’s decision.  On the same assumption, the probability of a substantial injustice would, in the circumstances, including the very short period by which the applicants exceeded the seven day time limit, warrant the grant of an extension of time pursuant to O 52, r 10(2A) of the Rules of this Court.  However, I can detect no error in his Honour’s exercise of the discretion conferred on him by r 13.03A of the Federal Magistrates Court Rules 2001, which provides;

‘If a party to a proceeding is absent from a hearing other than its first court date, the court may do any of the following:

(a)        adjourn the hearing to a specific date or generally;

(b)        order that there is not to be any hearing unless

(i)           the proceeding is again set down for hearing or

(ii)          any other steps that the court directs are taken;

(c)        if the party absent is an applicant or an respondent who has made a cross-claim, dismiss the application or the cross-claim;

(d)        proceed with the hearing generally or in relation to any claim for relief in the proceeding.’

15                  In this case the learned Federal Magistrate exercised his discretion by taking the course indicated by par (c) of that rule.  In the circumstances known to him at the time there is nothing to suggest that that discretion miscarried.  Moreover, the transcript of the hearing on 18 April 2006 reveals that the learned Federal Magistrate was alive or alert to the possibility, if not the likelihood, that an application might be made under r 16.05 of the Federal Magistrates Court Rules to set aside the orders which he was then making.  That rule provides;

‘(1)      The Court may vary or set aside its judgment or order before it has been entered.

(2)       The Court may vary or set aside its judgment or order after it has been entered if:

(a)        the order is made in the absence of a party; or

(b)        the order is obtained by fraud; or

(c)        the order is interlocutory; or

(d)        the order is an injunction or for the appointment of a receiver; or

(e)        the order does not reflect the intention of the Court; or

(f)        the party in whose favour the order is made consents.

(3)       This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.’

16                  It is clear that, in the circumstances of this case, an application could have been made, and, indeed, could still be made under subrule (2) (a) or (c) of that rule.  In these circumstances, I agree with respect with the observations of Young J in MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs  (2006) FCA 172 where his Honour said, at [9];

‘The appropriate course for the applicant to adopt would have been to apply to have the decision of O’Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this Court. It has been doubted, in any event, whether this Court can entertain an appeal from a decision to dismiss an application for want of appearance: see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 (“MZWIK”) and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505.’

17                  His Honour continued, at [12]–[13];

‘Rather than proceeding under s 25(2B)(bb)(ii), I propose to adopt the course taken by Sundberg J in MZWIK, and consider whether there is sufficient merit in the appeal to justify the grant of leave. This seems preferable where the course the applicant should have taken is to make an application in the Federal Magistrates’ Court under r 16.05(2).

I cannot see any basis for impugning O’Dwyer FM’s decision. It is clear that his Honour has the power to dismiss an application for non-appearance of an applicant, and nothing in the notice of appeal evinces any irregularity in the exercise of that power. The applicant’s non-appearance before O’Dwyer FM remains unexplained. In these circumstances, the appeal has no prospect of success.’

18                  In my view those observations can be paraphrased to apply with equal force to the present case.  It is true that an attempt has been made to explain the non-appearance of the applicants before McInnes FM, but that explanation should be advanced, if it is to be made, before the Federal Magistrates Court, as Young J has indicated, on an application under r 16.05(2). 

19                  For these reasons I consider that both the application for an extension of time within which to appeal and leave to appeal should be refused.  In the circumstances, I consider that an appropriate order as to costs is to order that the Minister’s costs of the application to this Court be her costs in any application to the Federal Magistrates Court under r 16.05 of the Rules of that Court provided that such an application be made within 28 days of this day.  In default of such an application to the Federal Magistrates Court, the applicants should pay the Minister’s costs of the proceedings in this Court.

Associate:

Dated:         17 November 2006