FEDERAL COURT OF AUSTRALIA

MZWUA v Minister for Immigration & Multicultural Affairs [2006] FCA 1625

MIGRATION – judicial review – non-attendance by appellant at hearing – where medical certificate provided in support of adjournment did not provide sufficient basis for the grant of an adjournment – power to dismiss appeal in accordance with s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth)

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

NAKX v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 applied

NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 applied

MZWUA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 480 OF 2006

MIDDLETON J

21 NOVEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a decision of Federal Magistrate McInnis on 13 December 2004 dismissing an application for review of a decision of the Refugee Review Tribunal (‘The Tribunal’) made 29 October 2004 handed down 19 November 2004.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs on 31 March 2004 refusing to grant the appellant a protection visa.

Procedural background and Appellant’s claims

2                     The appellant is a citizen of India of Sikh religion.  He arrived in Australia on 15 September 2003 and applied for a Protection (class XA) visa on 14 October 2003.  On 31 March 2004, his application was refused by the delegate and the appellant applied to the Tribunal on 27 April 2004 for a review of the delegate’s decision.  The appellant claimed to have a well-founded fear of persecution in India due to his Sikh religion and his political opinion both actual and imputed.

3                     The Tribunal rejected the appellant’s claims and provided comprehensive reasons which I do not need to go through at this time.  The Tribunal concluded that the appellant did not have a well-founded fear of persecution for a Convention reason and dismissed the application.

4                     The appellant appealed from this decision to the Federal Magistrates Court on 13 December 2004.  Before McInnis FM the appellant claimed that: the decision of the Tribunal was made without jurisdiction or was affected by error of jurisdiction; the decision of the Tribunal being affected by jurisdictional error was not a private clause decision to which s 474 of the Migration Act 1958 (Cth) (‘the Act’) applied; and the decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to take account of relevant material.

5                     The appellant did not appear at the hearing.  In considering the application, McInnis FM went though a number of matters that need no rehearsal in the circumstances that have now arisen.  His Honour concluded that the Tribunal’s decision was free of jurisdictional error and all claims had been properly considered and thoroughly analysed.  Accordingly, his Honour dismissed the application.

Grounds of appeal

6                     By notice of appeal dated 4 May 2006, the appellant now appeals from the judgment of McInnis FM to this Court.  The appellant relies on two grounds of appeal, namely: that there was an error of law in the Federal Magistrate’s decision constituting a jurisdictional error; and that there was procedural error in the Federal Magistrate’s decision constituting an absence of natural justice which was also a jurisdictional error.  The appellant has not filed any written submissions in support of his claims.

Consideration

7                     When the matter was called for hearing on this day, I was informed that the appellant would not be attending.  Apparently, on 20 November, 2006, a facsimile was sent at 8.30 pm addressed to the Registrar of the Federal Court of Australia from the appellant stating that he could not attend the hearing as he is very ill.  Included with that facsimile was a medical certificate which certified that the appellant ‘is unfit for his normal work from 20/11/2006 to 21/11/2006 inclusive’.  The medical certificate does not, in my view, support any proper application for an adjournment, which is what has effectively been asked for by the appellant.  In particular, it does not address the critical question of whether, and if so, why, the medical condition complained of would prevent the appellant from travelling to the Court and participating effectively in the hearing.  The medical certificate only deals with the question of the appellant’s fitness for normal work.

8                     The question arises as to what to do in the circumstances where there is a non-attendance by the appellant at the hearing of the appeal, but where, nevertheless, the appellant has notified the Court of a reason in support of the adjournment.  On the material before me, however, I do not accept that the appellant has a valid reason for the adjournment.

9                     The question arises then how to dispose of the matter.  Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal.  In circumstances where no proper justification has been given for the failure to attend, in my view, it is appropriate to exercise the discretion given to make such an order.  In reaching this conclusion, I have considered the principles in other cases dealing with similar matters, in particular the decisions of NAKX v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, and NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17, which support the exercise of the power in these circumstances.

10                  Another way to approach the matter is to determine the matter on this day on its merits.  Such an approach was adopted, for example, in MZWIK v Minister of Immigration & Multicultural & Indigenous Affairs [2005] FCA 185 and VOAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 224 ALR 460.  However, the circumstances in those cases differ from the present case.  In the circumstances of this case where there are no written submissions, and where it is not merely determining a point of law such as the competency of the Court, I do not consider it is appropriate to proceed in that way.

Conclusion

11                  Therefore, in the circumstances, I will order that the appeal be dismissed.  I should indicate, however, that the appellant may, if so advised and on the proper material, seek to have the order for dismissal in the absence of the appellant set aside upon application.  I say nothing as to whether an application to set aside will be likely to succeed, and this will be a matter which will need to be determined if and when such an application is made.  Therefore, I order that the appeal be dismissed with costs.

Associate:

Dated:         24 November 2006