FEDERAL COURT OF AUSTRALIA

BZACE v Minister for Immigration and Citizenship [2012] FCA 1303

THE COURT ORDERS THAT:

1.    The appeal be dismissed pursuant to Rule 36.72(5) of the Federal Court Rules 2011 (Cth).

2.    The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1     The appellant in this proceeding is a citizen of India, who arrived in Australia on 3 September 2009. On 19 July 2011, he applied to the Minister for Immigration and Citizenship for a Protection (Class XA) Visa. He was invited to attend a hearing before the delegate of the Minister with respect to his application on 22 November 2011, but he failed to do so. On 28 November 2011, the delegate made a decision to refuse the appellant’s application for a Protection Visa.

2    On 23 December 2011, the appellant made an application to the Refugee Review Tribunal for the review of the decision of the Minister’s delegate. By letter dated 6 February 2012, the appellant was sent an invitation to appear before the Tribunal on 21 March 2012. The appellant did not appear before the Tribunal, and by decision dated 23 March 2012, the Tribunal dismissed his application for review.

3    On 26 April 2012, the appellant made an application for judicial review in the Federal Magistrates Court. The grounds of the application were as follows:

1.    My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.

2.    Unfairness was involved in the failure of the Tribunal to send further communication to substantiate my claim of Refugee status and therefore there was a denial of natural justice.

3.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

4     The appellant’s application was listed for hearing before Coker FM on 10 August 2012. He did not appear and the federal magistrate dismissed the application by reason of the appellant’s absence at the hearing pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“Federal Magistrates Court Rules”): BZACE v Minister for Immigration and Citizenship & Anor [2012] FMCA 816.

5    Rule 13.03C(1)(c) of the Federal Magistrates Court Rules provides as follows:

(1)    If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

     …

(c) if the absent party is an applicant — dismiss the application;

6     By a “Notice of Appeal” filed on 30 August 2012, the appellant purported to appeal to this Court from the order of the Federal Magistrates Court. The grounds of appeal are as follows:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

7     On 6 September 2012, the Minister for Immigration and Citizenship as first respondent filed a Notice of objection to competency. The grounds of the objection are as follows:

1.    The first respondent objects to the jurisdiction of this Court to hear this appeal, on the ground that:

(a)    On 10 August 2012 when the Appellant’s application filed in the Federal Magistrates Court in proceedings BRG346/2012 was listed on for final hearing there was no appearance by the appellant and Coker FM dismissed the application under rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001. The orders of Coker FM of 10 August 2012 are interlocutory and the Appellant has not been granted leave to appeal against them pursuant to section 24(1A) of the Federal Court of Australia Act 1976.

8     The Notice of objection to competency came on for hearing before me on 20 November 2012. The appellant did not appear on that occasion.

9    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) provides that an appeal from an interlocutory judgment shall not be brought without the leave of the Court or a Judge. The order of Coker FM in the Federal Magistrates Court was that the appellant’s application for judicial review be dismissed and it was based on the appellant’s failure to appear at the hearing. It is an interlocutory judgment. I note that the appellant could have applied to the Federal Magistrates Court for an order setting aside the interlocutory judgment pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules. This Rule gives the Court the power to set aside a judgment or order after it has been entered if the order is made in the absence of a party. He would, however, have had to explain his absence at the hearing before the Federal Magistrates Court on 10 August 2012.

10    In the absence of leave to appeal the purported appeal is incompetent and should be dismissed pursuant to Rule 36.72(5) of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”).

11    The first respondent asked me to treat the “appeal” as if it was an application for leave to appeal and to refuse it on the grounds that it was filed out of time (Rule 35.13 of the Federal Court Rules 2011) and it did not, in any event, meet the requirements for leave (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). I do not think I should do that where it is the Notice of objection to competency which has been listed before me and the appellant has not appeared.

12    The appropriate order is that the appeal be dismissed under Rule 36.72(5) of the Federal Court Rules 2011.

13    The first respondent sought his costs on an indemnity basis. I am not satisfied that there is a sufficient basis for such an order. I do not think that the two grounds relied on by the first respondent – a failure, despite notice, to discontinue the proceeding and pursue an application under Rule 16.05(2)(a) in the Federal Magistrates Court and non-appearances before both the delegate and the Tribunal – are sufficient to justify a departure from the usual basis on which costs are awarded.

14    I will made the following orders:

1.    The appeal be dismissed pursuant to Rule 36.72(5) of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.

Associate:

Dated:    22 November 2012