MZWPX v Minister for Immigration and Citizenship [2009] FCA 116 (11 February 2009)

Last Updated: 27 February 2009

FEDERAL COURT OF AUSTRALIA

MZWPX v Minister for Immigration and Citizenship [2009] FCA 116

Federal Magistrate Court Rules 2001 (Cth) r 13.03A

MZWPX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
VID 907 of 2008

TAMBERLIN J
11 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 907 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZWPX Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	11 FEBRUARY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed with costs.
   

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 907 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZWPX Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TAMBERLIN J
DATE:	11 FEBRUARY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate O’Dwyer who, on 4 September 2008, dismissed an application for reinstatement of an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal), which in turn affirmed a decision of the delegate of the Minister to refuse a protection visa. In dismissing the application for reinstatement, under rule 13.03A of the Federal Magistrate Court Rules 2001 (Cth), on the basis of the applicant’s non-appearance, O’Dwyer FM also made orders restraining the appellant from filing any further application without obtaining leave.
2. The appellant subsequently sought to file an application to set aside the dismissal of the reinstatement application, but failed to attend an adjourned hearing to determine whether he should be granted leave. He gave a medical certificate to the registry, allegedly to support his non-appearance on 4 September 2008. His Honour found the medical evidence unconvincing, and was not persuaded that the appellant was precluded from attending the earlier proceeding due to illness. The certificate in question was dated 29 August. It is in the most general form and does not give any detail which, in my view, could reasonably support the failure to attend on 4 September 2008.
3. The ground of appeal is said to be that the appellant was not given an opportunity to present supporting documents to the Federal Magistrates Court, as he was unable to attend.
4. The matter has had a long and complex history. The basic subject matter of the appeal is a decision of the Tribunal on 11 March 2004. Since that date, the appellant has been seeking the exercise of ministerial discretion in his favour, but has been unsuccessful on a number of occasions. During that period, no attempt was made to challenge the decision. No effective attempt was made to challenge the decision until recent times, and there have been substantial delays which are not properly explained.
5. The fact that an application is made to the Minister to exercise his discretion under the Act is not a sufficient basis, in my view, for failure to take the other procedural steps. However, be that as it may, the application in the present case requires an extension of time within which to seek to appeal, and obtain leave to appeal from the Court. The time in the present case is not great. It is in the order of 28 days and no evidence has been put before me as to any prejudice which would be suffered. However, I have taken into account the substantial delays and gaps in this matter by the appellant.
6. In order to consider this application for an extension of time, the criteria are that there must be an explanation for the delay, and there must also be shown to be some reasonable basis for argument, which would cast doubt on the decision below.
7. The grounds of appeal which have been foreshadowed in the application for an extension of time are in the most general terms and are simply that the Federal Magistrate failed to allow the appellant to provide his supporting statements in the case, as he was unable to attend the court on 4 September 2008, due to health reasons. The appellant indicated that he would like to present documents, indicating that the decisions were irrational and unjustified.
8. The orders sought are cast in the terms that assert irrationality and lack of justification for the Tribunal decision. There has been no specific submission made before me which would in any way support these generalised grounds, and I am not persuaded, having considered the matter, that there is any substance or arguable case which the appellant is able to present as to the essential merits of the question at issue. I am not persuaded that, in any way, the Federal Magistrate made any error in relation to the decision presently under appeal, and I do not see that any useful purpose could possibly be satisfied by granting an extension of time for leave to appeal, on the material which is before me.
9. Some material was produced by the appellant during the course of the hearing, which had not previously been placed before the court. Apart from other objections to its admissibility in relation to the question before me, I am not persuaded that, in any way, any of this material supports a case to the effect that there is any arguable ground on which to challenge the decision of the Federal Court Magistrate in this case, or, indeed, the determination and reasoning of the tribunal below. Accordingly, I dismiss the present application with costs.
   

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 11 February 2009

Appellant:	unrepresented
Counsel for the First Respondent:	Ms E. Latif
Counsel for the First Respondent:	Ms S. Thompson, Clayton Utz

Date of Hearing:	11 February 2009
Date of Judgment:	11 February 2009