FEDERAL COURT OF AUSTRALIA Applicant MZQAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1801 MIGRATION – appeal from summary judgment against the appellant by reason of the non-appearance of the appellant Federal Magistrates Court Rules r 16.05(2) APPLICANT MZQAF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1007 OF 2004 MERKEL J 23 SEPTEMBER 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1007 OF 2004 BETWEEN: APPELLANT MZQAF APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 23 SEPTEMBER 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT, subject to any order made prior to 8 October 2004, the appeal to this Court be dismissed with costs on that date. 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 V1007 OF 2004 BETWEEN: APPELLANT MZQAF APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MERKEL J DATE: 23 SEPTEMBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant applied to the Federal Magistrates Court ("FMC") to review a decision of the Refugee Review Tribunal. When the review came on before the FMC the appellant failed to appear and an order was made dismissing her application on the ground of non‑appearance: see r 13.03A(c) of the Federal Magistrates Court Rules ("FMC Rules"). 2 The appellant was entitled to apply under r 16.05(2) of the FMC Rules to the FMC to vary or set aside the order on the ground, inter alia, that the order is made in the absence of a party. The appellant chose not to take that course but, instead, sought to appeal to the Federal Court against the order of the FMC. The Chief Justice directed that the appeal be heard by a single judge. 3 The appellant's Notice of Appeal claims that the appeal is on the ground that the appellant's grounds of review had been made out. It is supported by a short affidavit which contains a paragraph stating that the appellant disagrees with the decision of the FMC: "…on the grounds that the Tribunal misconstrued the definition of persecution and should have determined that the findings with respect to those events that affected me in 1994 and made by the Tribunal amounted to findings of serious harm and persecution within the meaning of section 91R. The Tribunal also failed to recognise that those events amounted to persecution and was a jurisdictional error." 4 Of course, the FMC did not consider the matter on the merits as it dismissed the case on the ground of the appellant's non-appearance. The solicitors for the respondent had informed the appellant that her appeal appeared to be misconceived and that r 16.05(2) provides for her to apply to the FMC to vary or set aside the order against her. It also informed the appellant that she should explain to the Federal Court why she was absent and outline why, if the judgment is set aside, she has an arguable case that the application for review will be successful. 5 The appellant was aware that the matter was fixed for hearing today and sent a letter to the Registrar saying that she is unwell and unable to attend. The letter enclosed a medical certificate which states that the appellant is being treated for reactive depression with counselling and support. The certificate did not indicate that the appellant is so unwell that she is unable to attend and I do not regard the material she has placed before me as sufficient to persuade me that she cannot attend Court. Also, the appellant has failed to explain why she failed to appear before the FMC when the matter came on for hearing. 6 The respondent has moved for summary judgment to dismiss the appeal on a number of grounds. They are that the appellant is not present, that the order from the FMC is not appellable because it is an interlocutory order and that there is no arguable ground for discerning any error in the FMC's decision because the FMC was entitled to dismiss the matter on the ground of non-appearance. 7 The appeal is entirely misconceived as each of the grounds relied upon by the respondent has been made out. No explanation has been given for the appellant's non-attendance before the FMC and I am not satisfied that there has been a satisfactory explanation for the appellant's failure to appear today. The documents filed by the appellant appear to be in a standard form, which is unrelated to any issue arising and no arguable ground of any error on the part of the FMC has been put forward. 8 Insofar as the appellant's letter to the Court was an application for an adjournment, I am not satisfied that I should adjourn the matter. I propose to dismiss the appellant's appeal but, given the consequences that might follow from the dismissal of the proceeding, I propose to give the appellant one last opportunity to attend before the Court to explain whether she does have an arguable ground for this matter to proceed. 9 What I propose to do is order that the appeal to the Court be dismissed with costs, but I will not make that order operative until 8 October 2004 as I propose to give the appellant the opportunity to make an application in the week commencing 27 September 2004 to the duty judge for that week to demonstrate why the order should not become operative. If the appellant fails to attend or satisfy a judge that the order should not be made operative, then it will take effect. 10 I order that, subject to any order of a judge of the Court made prior to 8 October 2004, the appeal to this Court be dismissed with costs on that date. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 1 July 2005 For the Appellant: No appearance Solicitor for the Respondent: Clayton Utz Date of Hearing: 23 September 2004 Date of Judgment: 23 September 2004