FEDERAL COURT OF AUSTRALIA

MZYAN v Minister for Immigration and Citizenship [2009] FCA 506 

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

MZYAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 6 OF 2009

MARSHALL J

18 MAY 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          Earlier this morning the Court made orders disposing of this application. What follows are the reasons for the making of those orders.

2                          The applicant applies for leave to appeal from an interlocutory judgment of the Federal Magistrates Court.  That Court dismissed the applicant’s application for reinstatement of his claim for judicial review of a decision of the Refugee Review Tribunal.

3                          The Federal Magistrate rejected the reinstatement application because he considered the applicant gave an unsatisfactory excuse for his non-attendance at the hearing date set aside for the matter on 3 November 2008.  The applicant had sent a letter to the Court below, enclosing a medical certificate.  The certificate stated that the applicant was suffering from “a personal illness (?) colitis, possible infective and will be unfit for work from 03/11/08 to 04/11/08 inclusive”.

4                          At [7] in his reasons for judgment the Federal Magistrate said, “The certificate did not explain why the condition would prevent the applicant from attending Court”.

5                          The applicant submits that his application should have been reinstated because of the medical certificate. He claimed that the Federal Magistrate was biased against him. His Honour rejected the accusation of bias and considered the certificate to be deficient.  Nonetheless he went on to consider the merits of the proceeding sought to be reinstated and considered that it had no reasonable prospect of success.

6                          The applicant’s draft notice of appeal refers to a failure to consider his case in accordance with refugee law and natural justice.  He also refers to “error of law” and “bias”.  The affidavit in support of the application claims that the decision below “was made one-sided”.  There is no material dealing with the deficiency of the certificate or seeking to explain why the applicant was not fit to attend court on the scheduled hearing day for his application before the Federal Magistrate. Indeed in his oral submissions this morning the applicant did not address that issue despite being invited by the Court to do so. He also did not attempt to demonstrate how the Federal Magistrate was biased against him.

7                          The judgment of the Federal Magistrate refusing reinstatement is not attended by sufficient doubt to warrant its being reconsidered.  It is supported by Full Court authority in NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [24] where their Honours held that the certificate in question did not identify a medical condition or explain why it would prevent the applicant from appearing in Court.

8                          No substantive injustice would arise if leave were refused as the Court below carefully considered the merits of the applicant’s substantive application and persuasively reasoned that it had no merit.  The applicant’s challenge to the Tribunal’s decision essentially concerned questions of fact rather than the identification of judicially reviewable errors.  His Honour correctly found that there was no arguable case for judicial review. 

9                          The application for leave to appeal is dismissed with costs.

Associate:

Dated:  18 May 2009