MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs

Leave to appeal 7 The applicant requires leave to appeal from the interlocutory order of the Magistrate made on 10 February 2006. He has also sought an extension of time in which to apply for leave. Since he does not have representation, I have assumed in his favour that he was unaware of the need to seek leave within a particular period. I will proceed directly to his application for leave. 8 The relevant considerations for the Court in determining whether leave to appeal should be granted pursuant to s 24(1A) of the Federal Court of Australia Act 1976 are whether the decision sought to be appealed is attended by sufficient doubt to warrant its reconsideration, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

The Magistrate's decision 9 In the decision from which leave to appeal is sought, the Magistrate set out the affidavit of the applicant in support of the application to set aside the judgment of 19 December 2005. In summary that affidavit asserted: · at about 9:00 am on 19 December 2005 the applicant had a medical certificate given to the Court stating that he was unfit to work during the period 18 December to 21 December · he believed the Court would act on the certificate by adjourning the hearing to a date after 21 December · he believes he was denied an opportunity to be heard as a result of the order made on 19 December dismissing his application · on 9 March 2005 he requested the Tribunal to schedule another hearing because he had not attended the hearing on 8 March 1995, but was informed that his request was refused · he believes he was denied natural justice as a result of not being given the opportunity to attend a hearing before the decision was handed down on 1 April 2005. 10 The Magistrate noted that he had set out in his earlier reasons why he did not accept the medical certificate as a sufficient basis for an adjournment: there was no application for an adjournment; there was no request that the applicant attend by telephone; there were no details as to why he was unable to attend; the certificate only referred to the applicant's usual occupation; and it provided no details of his ailments. 11 The Magistrate then said that the applicant had not addressed the issues recorded at [10] in the affidavit referred to at [9]. 12 His Honour went on to consider whether the applicant had an arguable case, taking the view that if he had, the fact that he had not properly explained his absence from the hearing would not of itself justify refusing him a further hearing. 13 The Magistrate then said that, for the reasons set out in his 19 December 2005 decision, he did not regard the matters raised by the applicant in his earlier written material as providing any basis for review. The applicant had not placed before him any further argument or material other than that the Tribunal had refused to provide him with another hearing date. His Honour noted that, whilst it was not deposed to in the applicant's affidavit, he had said from the bar table that his failure to attend was an "oversight". 14 The Magistrate then noted: · the Tribunal's invitation to the applicant to attend the hearing on 8 March, advising him that if he did not attend and a postponement was not granted, the Tribunal may make a decision on his case without further notice · that the applicant informed the Tribunal that he would be attending the hearing · that he did not attend the hearing · that as at the date on which it made its decision (9 March 2005) the applicant had not advised the Tribunal of any reason for his failure to attend · that in the above circumstances, pursuant to s 426A of the Migration Act 1958, the Tribunal had decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 15 His Honour then referred to the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] establishing the propriety of the course taken by the Tribunal, and continued: "The Tribunal has provided the applicant with an opportunity to be heard and the applicant has failed to avail himself of that opportunity in circumstances where it could not be said that it was through no fault of his own (for example, a case where a person was in a motor vehicle accident on their way to the hearing or the like). It appears to me that it is within the discretion of the Tribunal to decide whether or not to set another time for hearing or proceed to make a decision. It does not appear to me to be arguable that the Tribunal in proceeding to determine this matter, has committed a jurisdictional error. In the circumstances I am not satisfied that the applicant has an arguable case and therefore it appears to me that there is no purpose to be served in setting aside my earlier orders. This, taken with the lack of detail of explanation for the non‑attendance before the court on the previous occasion, and the overall circumstances of the nature of and conduct of this case, leads me to refuse the current application." 16 In my view there is no error in the Magistrate's decision. The Tribunal was possessed of a discretion to take the course it did. Nothing has been shown that impugns the exercise of the discretion. Its decision was authorised by s 426A. 17 It is necessary however to refer to three matters referred to in the applicant's affidavit in support of his application to set aside the Magistrate's decision. 18 The first is his attempt to distinguish VSAF. See [15] above. He says that in that case the applicant "simply announced that he would not be attending" the Tribunal hearing. That was not the present case. He said he would be attending, but "I could not attend" on 8 March 2005. He had made his request for a new date before the Tribunal handed down its decision on 1 April. Had he known he was not going to have a fresh hearing, he would have asked his adviser to make written submissions for him. In those circumstances, he says that s 426A was wrongly used against him. 19 It is true that the facts of VSAF are unlike those of the present case. But the Magistrate was not relying on VSAF as a factually similar case. Rather it was to show that the course taken by the primary judge in VSAF was wrong, and that s 426A does authorise a Tribunal to make a decision without setting another hearing date for a person who has failed to appear at a hearing. It is to be noted that the applicant's statement from the bar table was that his failure to attend the hearing was an "oversight". It could not be said that his failure to attend was through no fault of his own. See VSAF at [13]. 20 In relation to the claim that the applicant had requested a new date before the Tribunal made its decision, it is important to recall the Tribunal's statement that as at the date of its decision (9 March 2005), the applicant had not advised it of any reason for his failure to attend the scheduled hearing. There is no evidence of the applicant's alleged request for another hearing before the decision was made. His own evidence is that the request was not made until 9 March, the day after the hearing, and on the very day the Tribunal made its decision. 21 The matters the applicant has relied on in [18] do not establish a "wrong" use of s 426A. 22 Then the applicant claims that in saying that he did not have an arguable case, the Magistrate failed to take into account a relevant consideration, namely that the applicant is a member of a particular persecuted social group in Lebanon and he will be persecuted if he were to return. This contention has no substance. The question was whether the applicant had an arguable case that the decision of the Tribunal in reliance on s 426A constituted a jurisdictional error. It was not whether he had an arguable case for being entitled to a protection visa. 23 The third matter is the contention is that if he had been afforded another hearing he would have given more information as to why he was a refugee. However he does not say what he would have said, in addition to the material already before the Magistrate, that could have made a difference to the outcome. Conclusion 24 I am clearly of the opinion that the Magistrate's decision is not attended by sufficient doubt to warrant its reconsideration by this Court. Having regard to my view that there is no prospect of success on any appeal, it is artificial to assume the contrary for the purposes of the second Décor consideration. The two Décor considerations are linked. See Décor at 399; Applicant VMAO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 427; Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 131 at [25] per Black CJ, Sundberg and Hely JJ. 25 I will extend the time in which to apply for leave to appeal to the extent necessary, but will dismiss the application for leave with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.