FEDERAL COURT OF AUSTRALIA

MZXME v Minister for Immigration & Citizenship
[2007] FCA 767

MIGRATION — purported appeal from judgment of Federal Magistrate dismissing application by reason of failure to appear — objection taken to competency — Federal Magistrate’s judgment interlocutory — appellant failed to appear at Federal Court hearing — appeal dismissed as incompetent

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Court Rules O 52 r 5

Federal Magistrates Court Rules 2001 rr 13.03A(c), 16.05(2)(a)

MZWIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 185 cited

MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 applied

MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 applied

NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 applied

MZXME v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID189 OF 2007

WEINBERG J

18 MAY 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The objection to competency be allowed. 

2.                  The notice of appeal filed on 8 March 2007 be struck out as incompetent. 

3.                  The appellant pay the first respondent’s 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 appeal filed on 8 March 2007, the appellant appeals from a judgment of Federal Magistrate Riley given on 21 February 2007.  In that judgment, her Honour dismissed an application to review a decision of the Refugee Review Tribunal rejecting the appellant’s claim to a protection visa. 

2                     The basis upon which the Federal Magistrate dismissed the application to review was the failure of the appellant to appear on the day of the hearing.  Her Honour invoked r 13.03A(c) of the Federal Magistrates Court Rules 2001.  She included in the orders dismissing the application a notation to the effect that pursuant to r 16.05(2)(a) the Court may vary or set aside a judgment or order made in the absence of a party.  She did not consider the case on its merits. 

3                     The respondent Minister has filed a notice of objection to competency.  That notice contends that the decision given on 21 February 2007 is an interlocutory judgment and accordingly not subject to appeal as of right.  Further, pursuant to O 52 r 5 of the Federal Court Rules leave to appeal must be sought within 21 days of the pronouncement of the interlocutory decision, and the applicant must also obtain an extension of time.  No application for leave to appeal has been sought. 

4                     Attempts have been made to contact the appellant in recent weeks.  Save for the provision of a letter addressed to the Registrar of the Court, faxed on 17 May 2007 together with a medical certificate dated 16 May 2007, there has been no communication from the appellant.  In particular, in breach of directions given on 19 March 2007, no written submissions have been filed on behalf of the appellant. 

5                     When the matter was called on for hearing this morning, there was no appearance by the appellant.  The explanation may lie in the medical certificate which says simply that the appellant attended a medical practitioner on 16 May 2007 and was considered to be “unfit for work” on 17 and 18 May 2007.  The certificate is a pro forma, and contains no information of any kind as to the nature or gravity of the appellant’s condition.  His letter to the Registrar asserts that he is sick and unable to attend the Court, and requests that the matter be adjourned to another date. 

6                     Curiously, the appellant is not alone in being unwell, and unable to attend Court this morning.  Two other persons, each of whom is associated with the appellant, and whose cases were dealt with by the Federal Magistrate at the same time as that of the appellant, have also failed to comply with Court directions, and have also provided letters indicating that they are sick, and unable to attend Court today.  The letters referred to medical certificates as being attached, but none were in fact provided. 

7                     Having regard to the history of this matter, I am not persuaded that I should adjourn this proceeding.  The medical certificate tells the Court nothing about the seriousness of the condition, and whether it is really likely to prevent the appellant from going to Court.  There may be conditions that preclude someone attending work, but do not preclude the person attending Court.  I regard the certificate as worthless.  See generally MZWIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 185 per Sundberg J. 

8                     The objection to competency is plainly well taken.  A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature.  Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave.  See generally NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J. 

9                     It follows that the objection to competency will be allowed.  The purported notice of appeal filed on 8 March 2007 will be struck out as incompetent.  The appellant will pay the first respondent’s costs. 

Associate:

Dated:         18 May 2007