Applicant M1 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 469 (22 April 2005)

Last Updated: 22 April 2005

FEDERAL COURT OF AUSTRALIA

Applicant M1 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 469

PRACTICE AND PROCEDURE -- application for leave to appeal interlocutory judgment of the Federal Magistrates Court -- Federal Magistrates Court dismissed an application to reinstate a proceeding -- leave to appeal refused

MIGRATION -- failure to appear in Federal Magistrates Court -- no adequate explanation offered -- no evidence that appearing would have changed outcome -- no arguable case for review


Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth) s 24(1A)


Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 art 1A(2)


Evangelista v CPS Credit Union (SA) Ltd [2005] FCA 345 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
















APPLICANT M1 of 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V199 of 2005

MERKEL J
22 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V199 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT M1 of 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	22 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Leave to appeal from the interlocutory judgment of the Federal Magistrates Court refusing the application for reinstatement of the proceeding is refused.

2. The applicant pay the respondent’s costs of and incidental to this application for leave.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V199 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT M1 of 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MERKEL J
DATE:	22 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant is a Sri Lankan national who arrived in Australia on 6 January 2003. On the following day he applied for a protection visa on the basis that he is a refugee as defined by art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention"). The applicant claims to be a refugee because he has a well-founded fear of persecution for a Convention reason if he were to return to Sri Lanka.

2 A delegate of the respondent Minister refused the applicant’s protection visa application, and that refusal was later affirmed by the Refugee Review Tribunal ("the RRT"). The applicant then commenced proceedings in the High Court. Those proceedings were remitted by the High Court to this Court, and were then transferred to the Federal Magistrates Court ("the FMC"). Both the applicant and the Minister were notified in writing by the Registry of the FMC that the matter had been listed for hearing at 10:15am on 16 February 2005. When the matter came on for hearing, the Minister appeared by counsel, but the applicant failed to appear. Acting pursuant to r 13.03A of the Federal Magistrates Court Rules 2001 (Cth), which empowers the FMC to dismiss an application if the applicant fails to appear at the hearing, McInnis FM dismissed the application for review of the RRT’s decision.

3 The applicant filed an application for reinstatement of his proceeding. That application was dismissed by McInnis FM: see Applicant M1 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 271.

4 The applicant stated in his affidavit in support of the application for reinstatement:

"My migration agent, Mr Nihaq Gunatilake told me I did not have to attend court on 16th Feb.

He was not in Australia on 16th Feb, having gone to Sri Lanka. I received a call from the court asking me to come to court. I was not at home. I got the message at about 12 pm."

5 The applicant further informed the FMC from the Bar Table that he was attending a medical appointment on 16 February. The applicant also informed the FMC that his migration agent had told him that all relevant material had been placed before the court and that there was no need for him to attend the hearing in person.

6 The FMC considered that in order for it to reinstate the proceeding, it needed to be satisfied that there was some adequate reason for the non-appearance of the applicant at the hearing on 16 February. The FMC observed that there was nothing to suggest that the migration agent would have sought to appear before the FMC to assist in the presentation of the applicant’s application and determined that the evidence presented was insufficient to offer an adequate explanation for the applicant’s non-appearance either in person or by way of his migration agent or counsel at the hearing.

7 The FMC then considered that, even if it were wrong in reaching that conclusion, it would nonetheless refuse the application for re-instatement as, in its view, the applicant did not have an arguable case for review. The FMC was of the view that the applicant was seeking to re-agitate factual issues decided adversely to him by the RRT, and to introduce new country information that could and should have been provided at the original RRT hearing. The FMC considered the reasons given by the RRT for affirming the delegate’s decision, and concluded that the findings of fact that it had made and the conclusions that it had drawn were reasonably open on the material before it. The FMC was unable to identify in the RRT’s reasons any jurisdictional or other error that would render the RRT’s decision susceptible to judicial review. Further, the FMC found that there was no evidence to support the allegations of fraud or actual bias made by the applicant.

8 The FMC dismissed the application for reinstatement of the proceeding because no evidence had been presented that satisfactorily explained the applicant’s non-appearance and because the FMC concluded that, in any event, he would have been unsuccessful in his substantive application for judicial review of the RRT’s decision.

9 The orders of the FMC refusing the application to reinstate the proceedings were interlocutory in nature: see Evangelista v CPS Credit Union (SA) Ltd [2005] FCA 345 at [17] per Lander J. An appeal against an interlocutory judgment of the FMC may only be brought with the leave of the Court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In the circumstances I propose to treat the applicant’s notice of appeal filed on 17 March 2005 as an application for leave to appeal from the interlocutory judgment of the FMC and to determine whether leave ought be granted.

10 In determining whether leave is to be granted, the Full Court stated in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 that the Court is to consider:

(1) Whether, in all the circumstances, the decision being appealed from is attended with sufficient doubt to warrant its reconsideration by an appellate court; and
(2) Whether substantial injustice would result if leave were refused, supposing the original interlocutory decision to be wrong.

11 There are three fundamental difficulties confronting the applicant. The first is that he failed to give a satisfactory explanation for not appearing at the hearing either by himself or by his migration agent. It appears that both the applicant and his migration agent elected to allow the FMC to decide the matter on the material before it on the basis that there was no need for either of them to turn up. Thus, there appears to be little or no justification for the applicant’s present complaint that he was not represented at the hearing.

12 The second difficulty is that the applicant has not been able to put forward any reason for concluding that representation at the hearing might have made any difference to the outcome, which was the dismissal of his application for review.

13 The third difficulty is that the FMC considered the matter on the merits and determined that the applicant did not have an arguable case for judicial review. The applicant has not satisfied me that the FMC was an error in arriving at that conclusion.

14 In those circumstances I am not satisfied that the decision sought to be appealed from is attended by sufficient doubt to warrant its reconsideration on an appeal or that substantial injustice would result if leave were refused.

15 I would add that even if the appellant’s appeal were treated as an appeal from the original decision of the FMC to dismiss his application that appeal is out of time and, for the reasons set out above, I would refuse any application to extend the time for an appeal.

16 Accordingly, the application for leave to appeal is refused with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 22 April 2005

For the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr S Hay
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	22 April 2005
Date of Judgment:	22 April 2005