FEDERAL COURT OF AUSTRALIA

MZXPF v Minister for Immigration and Citizenship [2007] FCA 1765 

MZXPF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 756 OF 2007

MZXPJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 757 OF 2007

SPENDER J

5 NOVEMBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed as incompetent.

2.         The appellant pay the first respondent’s costs of the appeal, fixed in the sum of $1,250.00.

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

THE COURT ORDERS THAT:

1.         The appeal be dismissed as incompetent.

2.         The appellant pay the first respondent’s costs of the appeal, fixed in the sum of $1,250.00.

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

AND

REASONS FOR JUDGMENT

1                     These two applications are described as appeals.  Each appellant is a Thai national.  The appellants are brothers: the first, a 27 year old, arrived in Australia on 16 August 2006 on a visitor visa with his brother, then 24 years old. 

2                     Each of them applied for a Protection (class XA) Visa on 22 September 2006.  Each application was rejected by a delegate of the Minister on 3 October 2006.  Each filed an application for review on 23 October 2006. 

3                     In their applications, each applicant claimed that they left Thailand because they had been implicated in a murder they had not committed, and that they had fled because each feared that the dead woman’s parents were convinced of their guilt, were very influential, and the Thai police would be prevailed upon to charge him with the murder, and the trial would not be a fair one.

4                     The Refugee Review Tribunal (the Tribunal) hearing was held on 28 November 2006.  Each applicant attended and sought an adjournment in order that they might consult a lawyer.  The Tribunal asked each what steps had been taken to obtain legal advice since making the review application, and it transpired that no steps had, in fact, been taken.  The application for an adjournment was refused by the Tribunal. 

5                     In respect of the Tribunal hearing, each applicant had been in possession of the delegate’s decision for seven weeks, had filed an application for review five weeks prior to the Tribunal hearing, was aware of the issues at stake and knew of his own capacity to address them, but had taken no steps to obtain assistance. 

6                     At the Tribunal hearing, through an interpreter, an account was provided about the implications in the murder on 28 June 2006. 

7                     On 30 November 2006, the Tribunal wrote to each appellant about perceived inconsistencies in the evidence, raising serious doubts about the truth of the claims and about the credibility of each of the brothers.  That letter also indicated that research by the Tribunal had not located any media report about a murder of a young woman in Nonthaburi at the time in question, and also referred to the applicant’s inability to provide any evidence to support the account, and their inability to remember the dead woman’s name. Neither applicant responded to the section 424A Migration Act 1958 (Cth) letter.

8                     On 22 January 2007, the Tribunal affirmed the decision under review, and that decision was published on 9 February 2007.  The Tribunal indicated that it was not satisfied that the applicants’ fear of persecution were held for any of the five grounds set out in the Convention relating to the Status of Refugees, and in the Protocol relating to the Status of Refugees; those grounds being race, religion, political opinion, nationality or membership of a particular social group. 

9                     The Tribunal also did not accept, on the available evidence, the claims about the alleged murder.  It did not accept that the murder had ever occurred or that either applicant was vulnerable to unjust treatment by the Thai police.  As a consequence, the Tribunal was not satisfied that either applicant had a well founded fear of persecution if he were to be returned to Thailand. 

10                  In the application for review of the Tribunal’s decision, each purported appellant contended the Tribunal was wrong to deny his request for an adjournment, saying he did not speak English, did not understand the legal procedures that he had relied on friends to obtain the services of lawyer, but had been let down, and that it was only when he arrived at the Tribunal hearing that he realised the importance of consulting a lawyer.  The claims about the murder were also repeated on the review. 

11                  The Federal Magistrates Court conducted a hearing on 2 August 2007.  On the previous day the appellant sent a letter by facsimile transmission to the Court which stated:

I am sick and unable to attend the hearing until August 2007.

12                  No medical certificate was supplied.  No explanation was provided as to the nature of the illness, nor why it prevented the appellant from attending the hearing. 

13                  There was no appearance by either brother at the hearing in the Federal Magistrates Court on 2 August 2007.  McInnis FM treated the letter as an application for an adjournment.  His Honour found it to be inadequate, however, and refused the purported adjournment application. 

14                  In each case McInnis FM determined that the application should be dismissed with costs pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001.  Orders to that effect were made in each case on 2 August 2007.

15                  Having regard to rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001, each of the brothers could have applied to have the orders made by McInnis FM on 2 August 2007 set aside, those orders having been made in each brother’s absence.  The orders were, therefore interlocutory in nature, because they did not finally determine the matter. 

16                  What purported to be a Notice of Appeal was filed on 20 August 2007 appealing from the whole of the judgment of McInnis FM. 

17                  The first respondent filed a notice of objection to competency to this appeal on 4 September 2007, contending that the judgment of McInnis FM of 2 August 2007, in each appeal, was an interlocutory judgment and that, pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth), an appeal cannot be brought from a judgment of the Federal Magistrates Court that is an interlocutory judgment unless the Court or a judge gives leave to appeal, and that in each case, no such leave had been sought or obtained, and that the time for seeking leave had expired.

18                  It is important to note that the first respondent wrote to each appellant on 4 September 2007 enclosing, by way of service, a notice of objection to competency and informing the appellant that the appropriate course of action was for the appellant to apply to the Magistrates Court to have the orders of McInnis FM set aside under rule 16.05 of the Federal Magistrates Court Rules 2001. 

19                  The first respondent also invited each appellant to withdraw his appeal by 21 September 2007, further stating that, should he do so, costs would not be pursued in relation to the Federal Court appeal.  No application has been made by either appellant to have the McInnis FM orders set aside.  Neither has leave to appeal been sought. 

20                  The Court has received, in each case, written submissions from the appellant.  These reproduced the written submissions filed in the Federal Magistrates Court and say nothing as to why the appellants failed to appear at the hearing before the Federal Magistrate, or why they contend his Honour was wrong to dismiss their application for review. 

21                  It is plain that those written submissions could not support a successful appeal, even if an appeal were competent.  In this particular case there has been no application for leave.  Even if there were an application for leave it would not enjoy any prospects of success. 

22                  It is plain that the decision at first instance is not attended with any sufficient doubt to warrant it being reconsidered by an appellate Court.  Nor can it be said that, assuming that that decision was wrong, substantial injustice would result if leave to appeal was refused.

23                  Before the Federal Magistrate each appellant failed to appear and failed to provide any proper basis on which an adjournment might be granted.  In those circumstances the Federal Magistrate was entitled to dismiss the application for want of appearance.  In those circumstances each appellant was able to seek, but has not sought, to apply to have McInnis FM orders set aside.  Each was advised of these rights by the first respondent but has elected not to make any such application. 

24                  Notwithstanding communications sent to each appellant, which I am satisfied they have received, neither appeared today before the Federal Court.  I note in particular that, in each case, a facsimile transmission has been received by the Court from each of the brothers indicating that they would be attending at the Federal Court, indicating that they received the communications from the Court as to their appeal here.

25                  In this case there has been no attempt to obtain leave.  There is nothing in the material which suggests that, should such an application be made, it would have any prospects of success.  In those circumstances the proper order is to dismiss each appeal as incompetent.

26                  I should say that I have considered the entirety of the material and I am satisfied that, even if leave to appeal were to have been granted, the appeal is totally without merit and would have be dismissed.  However, since the appeal is incompetent, and a Notice of Motion to that effect has been filed by the first respondent, the appropriate orders to make are that, in each case, the appeal be dismissed as incompetent.

27                  In each case, I order the appellant to pay the costs of the first respondent, which I fix in the sum of $1,250.00.

Associate:

Dated:         19 November 2007