NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79

FEDERAL COURT OF AUSTRALIA

NAKX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 79

NAKX & NAKY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1694 of 2003 LINDGREN J 9 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1694 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAKX AND NAKY

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 9 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The motion brought by notice of motion filed on 7 January 2004 be dismissed. 2. The appellants pay the respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1694 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAKX AND NAKY

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 9 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT (No 2) 1 On 17 December 2003 I ordered that the appeal by the present appellants from a decision of the Federal Magistrates Court of Australia ('FMCA') given on 10 October 2003 be dismissed and that the appellants pay the respondent's costs of the appeal. I dismissed the appeal under O 52 r 38A(1)(c) of the Federal Court Rules because the appellants were absent. They had applied for an adjournment of the hearing and I refused that application and gave reasons for that refusal and for the dismissal of the appeal: see NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. 2 Ms Anna Volonski, a friend of the female appellant, was present on the hearing and I explained to her that the dismissal could be set aside upon application: see O 35 r 7(2)(a) of the Federal Court Rules. The final sentence in my reasons for judgment was as follows: 'I say nothing as to whether an application to set aside would be likely to succeed, but have explained that one would expect more evidence to persuade a Court to set aside the order of dismissal than the evidence which has been presented to me this afternoon.' I incorporate the earlier reasons for judgment in these. 3 By notice of motion filed on 7 January 2004 the appellants have moved for an order setting aside my orders of 17 December. The additional evidence on which they rely is found in an affidavit of the male appellant filed on 7 January 2004 filed with the notice of motion, and a further affidavit of the male appellant filed on 21 January 2004, to which are annexed further medical certificates. 4 The further medical certificate relating to the male appellant, NAKX, is dated 8 January 2004 and is issued by Dr Susanne Freeman. It reads as follows: 'To whom it may concern, This is to certify that [NAKX] was unable to attend court on 17 December 2003 because of a severely itchy rash (eczema) induced by stress.' The medical certificate relating to the female appellant, NAKY, is dated 14 January 2004 and is issued by Dr Alexandra Vrjosseck. It reads as follows: 'This is to certify that I saw [NAKY] in consultation today. She is complaining of depressive symptoms and will be returning for management and treatment.' 5 A second certificate on the letterhead of Dr Vrjosseck, also dated 14 January 2004, is signed by her secretary and is to the effect that, due to the Christmas period and annual holidays, the first opportunity for Dr Vrjosseck to see NAKY in consultation was on 14 January 2004, following her obtaining a referral from Dr Aristoff on 13 December 2003. 6 The certificate by Dr Vrjosseck says nothing as to NAKY's medical condition or capacity to participate in a hearing on 17 December last. In substance, the certificate of Dr Freeman in relation to NAKX merely repeats what his general practitioner, Dr Aristoff, had said (see [5] of my earlier reasons for judgment). Neither certificate explains why a severely itchy rash (eczema) would have prevented NAKX from participating in a short hearing on 17 December 2003. 7 On the hearing today, both appellants have appeared in person. They have made the point that they were not able to see their respective specialists prior to 17 December 2003 because appointments were not available. I accept that this was so. But as they have also said in Court today, they have now seen their specialists. Nonetheless the evidential position has not improved. I am simply still not persuaded on the evidence that the appellants were not able to participate effectively in a hearing of their appeals on 17 December last. 8 I have also read the reasons for decision of Federal Magistrate Driver. The appellants are a de facto husband and wife from Moldova. They arrived in Australia on 13 September 2000 and lodged an application for a protection visa on 23 October 2000. They claimed to fear persecution in Moldova for reasons of political opinion. 9 Apparently before the Federal Magistrate, NAKY, submitted that the Refugee Review Tribunal ('RRT') had erred in concluding that effective State protection was available. The learned Federal Magistrate referred to country information which was before the RRT and thought that the RRT's conclusion that State protection was available to the appellants in Moldova was supportable and did not expose any error of a jurisdictional kind. 10 Before the learned Federal Magistrate, the appellants also took issue with the weight which the RRT had attached to country information, and referred to aspects of country information which, in their submission, supported their claim that State protection was not available to them. The Federal Magistrate concluded that no jurisdictional error was shown to infect the decision of the RRT and that s 474 of the Migration Act 1958 (Cth) applied, the decision of the RRT being a privative clause decision. 11 The notice of appeal again takes up the question of the ability of the appellants to avail themselves of State protection in Moldova. The notice of appeal frames this issue in a way which, according to the notice of appeal, was not the way in which the issue was perceived by the RRT. According to the notice of appeal, the RRT found that the appellants were able to apply for protection to some organisations, whereas the correct issue was whether they were able, in a practical sense, to get adequate protection. The Federal Magistrate described the RRT's conclusion as one that 'effective State protection was available'. In addition, the presiding Member took into account that the appellants had not attempted to access the protections that were available in Moldova prior to their departure from that country in the year 2000. 12 So far as I can see, there is no jurisdictional error in the RRT's reasons. Admittedly, I have not had the benefit of a full argument on this matter. I note that the appellants did not comply with the Court's direction made on 26 November 2003 to file and serve an outline of submissions five working days prior to the date fixed for the hearing of their appeal. 13 I dismiss the application to set aside the order of dismissal on the lack of adequate evidence satisfactorily explaining the appellants' absence on 17 December 2003 but I note, as relevant to the exercise of my discretion, that the chance of success if the case were to go to a final hearing must be regarded as very slim indeed.