FEDERAL COURT OF AUSTRALIA

MZXJN v Minister for Immigration & Citizenship (No 2) [2007] FCA 385

PROCEDURE – notice of motion to set aside order dismissing appeal where appellant failed to appear – sufficiency of explanation for failure to appear – whether arguable case  

Federal Court of Australia Act 1976 (Cth), ss 25(2B)(bb)(ii), 25(2B)(bc)

Migration Act 1958 (Cth), s 91R 

Das v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 229 cited

MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624 referred to

SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 cited

SZFYC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1810 cited

SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 cited

VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 cited

MZXJN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 924 OF 2006

MIDDLETON J

15 MARCH 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The first respondent’s name be changed to the Minister for Immigration and Citizenship.

2.                  The application 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                     By notice of motion and affidavit filed 19 December 2006 the applicant seeks to set aside the orders made by this Court on 21 November 2006.  On 21 November 2006, the applicant's appeal was dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) because the applicant failed to attend the hearing.  The applicant claims in his supporting affidavit that he was ill on 21 November 2006 and that he arranged for a medical certificate to be presented to the Court.  Section 25(2B)(bb)(ii) of the Act confers a power on the Court to dismiss an appeal for failure of the appellant to attend the hearing.  Section 25(2B)(bc) of the Act empowers the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default.

2                     On this application I need to consider two matters: (a) whether the applicant has an arguable case; and (b) whether the applicant has provided a satisfactory explanation for non-attendance.  I refer generally to the discussion in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 per Jacobson J.  The background to this application and the applicant's grounds of appeal filed on 18 August 2006 are set out in my reasons for judgment previously delivered on 21 November 2006: see MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624.

Whether an arguable case

3                     In my view the Federal Magistrates Court decision discloses no error.  There is nothing to indicate that the Tribunal's finding were not open to it on the evidence.  It cannot be said the Tribunal failed to take into account any relevant consideration or took into account an irrelevant consideration or asked itself the wrong question.  The Tribunal was not satisfied the applicant’s claims demonstrated any Convention nexus.  This was a finding of fact, which on the evidence before it was open to be made by the Tribunal: see SZFYC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1810 at [22].

4                     The Tribunal also reached its conclusion about the absence of protection obligations on the basis of an independent reason.  The Tribunal considered and dealt with a factual substratum of the applicant’s claims.  The Tribunal was not satisfied that even if the claimed circumstances existed in Pakistan they would give rise to serious harm amounting to persecution.  I cannot find any basis for the conclusion that the Tribunal misconstrued or misapplied section 91R of the Migration Act 1958 (Cth).  Nothing in the Tribunal's reasons suggest that it treated the examples in s 91R(2) as an exhaustive statement of what constituted or might constitute serious harm: see VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [60] to [66] per Merkel J.  The Tribunal was entitled to consider those examples set out in subsection 91R(2) for guidance: see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [13].

5                     Finally, what constituted or might constitute serious harm amounting to persecution within the meaning of the Convention was a matter of fact and degree for the Tribunal: see Das v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 229 at 237-238 per Sundberg J.

6                     The applicant has not sought to articulate any other basis upon which it might be considered or suggested that the Tribunal's decision is affected by jurisdictional error.

Explanation for non-attendance

7                     On 21 November 2006 I found that the applicant's medical certificate did not provide an adequate explanation for his non-attendance at the hearing on that day.  I observed that the certificate did not address the question of why the condition referred to would prevent the applicant from travelling to Court and effectively participating in a hearing.  Accepting that implicit in the delivery of the certificate was an application for an adjournment, I considered that the mere giving to the Court of a certificate without further explanation was not a proper basis for an adjournment.

8                     In his affidavit sworn 19 December 2006 the applicant states that he was unaware of the importance of attending Court on the day of his hearing.  He does state that he was sick on 21 November 2006 and could not attend the Court.  The applicant incorrectly thought that the Court would see his medical certificate and give the applicant another chance to come to Court.  The first respondent contends that this is not an adequate explanation provided for the applicant's failure to attend Court.  I do not accept, in this regard, the first respondent's contention.  The applicant disclosed the fact that he was sick and could not attend.  I would infer, now that the applicant has deposed of these matters, that the applicant could not attend the Court because of his illness.  He thought the delivery of the medical certificate would be satisfactory and he was unaware of the risk he was running in not attending the Court.  On this evidence, whilst not entirely satisfactory, I am satisfied the applicant has given a satisfactory explanation for his non-attendance on 21 November 2006. 

Application for adjournment

9                     An adjournment application was sought today by the applicant.  The basis of the application seemed to be that the applicant wanted the opportunity to seek legal aid.  In my view the applicant has had ample opportunity to seek such legal aid, having regard to the fact that, as I am informed and accept, at relevant times, both before the Federal Magistrates Court of Australia and before this Court, the applicant has had the opportunity of approaching legal aid and has had the availability of interpreters to assist him.

10                  I also observe that in the 19 December 2006 affidavit, the applicant deposes that he had arranged for “a friend who has been helping me in relation to my legal matters”, so it would appear that from that time he has had someone who could assist him if there was assistance needed in relation to legal matters.  I do not therefore consider that the adjournment should be allowed and I so disallowed the adjournment application at the beginning of this matter, upon hearing and considering it. 

Conclusion

11                  I should also indicate that upon the basis of what has been put before me, both by the applicant and the first respondent, and upon the basis of reading the Federal Magistrate's decision and the decision of the Tribunal, I am satisfied that the application on its merits has no basis to succeed.  I would therefore propose to dismiss the application.

12                  In view of my conclusions, the order of the Court will be that the application is dismissed with costs and the name of the first respondent will be changed to the Minister for Immigration and Citizenship.

Associate:

Dated:         20 March 2007