MZWND v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 373

FEDERAL COURT OF AUSTRALIA

MZWND v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 373 MZWND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 1530 of 2004 RYAN J 1 APRIL 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1530 of 2004

On appeal from the Federal Magistrates Court

BETWEEN: MZWND

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 1 APRIL 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs, including any reserved costs, such costs to be taxed in default of agreement. 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 VID 1530 of 2004

On appeal from the Federal Magistrates Court

BETWEEN: MZWND

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 1 APRIL 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal as of right from an order of the Federal Magistrates Court constituted by Riethmuller FM made on 30 November 2004 dismissing an application which had been made by the appellant to the Federal Magistrates Court on 18 June 2004. The appellant does not have legal representation. He has not complied with directions which I gave on 4 February 2005 requiring him to file and serve, on or before 18 March 2005, an outline of contentions and a supplementary appeal book, if any, comprising any material the appellant considered should have been included in the appeal book which, I had directed, should be filed and served by the respondent. There has been no appearance for or by the appellant today but he sent a facsimile message to the solicitor for the respondent which recites; 'I am very sorry to inform you that I am not feeling well today. I went to the doctors yesterday and I have enclosed a receipt of invoice for your kind information. I am suffering from fever and a sore throat. Sorry for the inconvenience. Please accept my sincere apology.' 2 Annexed to that message was a copy of an invoice and receipt rendered apparently to the appellant by the Cheltenham Medical Centre in respect of a consultation on yesterday, 31 March 2005. It is by no means clear whether that message was intended to support an application for an adjournment of today's appeal, but, even if it were to be so treated, I am not disposed to grant an adjournment. This is not the first time that this appellant has failed to appear when proceedings instituted by him have been brought on for hearing. At the hearing before Kenny J in this Court on 12 May 2004, to which I shall refer later, he did not appear and her Honour, in the course of reasons published on that day, made these observations; 'As already noted, he has not appeared at the hearing of his application.' 3 Her Honour then referred to attempts made by the solicitor for the respondent to contact the appellant, and continued; 'As I understand it, on 22 March 2004, the Court also sent notification to the address the applicant provided to it. As it turned out, it became clear that the applicant had notice of the hearing because this morning the Court received a facsimile message from the applicant stating that he "would not be able to attend the court because he is very sick", and that he is "very sorry" for the inconvenience. He also sought another date for the hearing. The respondent opposed any adjournment. If this facsimile message is to be regarded as an application for an adjournment, it should be refused. In the circumstances, bearing in mind the matters deposed to by Mr Wee, the solicitor for the respondent, and notwithstanding the applicant's facsimile message, it is appropriate to hear and determine the application before the Court this afternoon.' 4 As I understand it, the appellant also failed to appear on the hearing before Riethmuller FM, from whose orders the present appeal has been brought. For reasons substantially identical with those indicated by Kenny J, I consider that, if an intention to apply for an adjournment can be imputed to the appellant, that application should be refused and the appeal should be heard and determined today. 5 In the proceedings in the Magistrates Court, by way of indicating the grounds relied on, the application, apparently prepared by the appellant himself, recited; '1 I disagree with decision of the Refugee Review Tribunal and seeking an order to set aside the decision dated 28.11.2003.