MZXBX v Minister for Immigration
[2005] FMCA 1550
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXBX v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1550 |
| MIGRATION – Review of decision of Refugee Review Tribunal. PRACTICE AND PROCEDURE – Application to set aside orders made in absence of the applicant – where the applicant requested an interpreter at the original directions hearing but was not provided one – where it is found that the applicant would not understand the terminology and requirements of the orders made – where there is no evidence that a sealed copy of the orders made by the court were forwarded to the applicant by the court – where the respondent later forwarded the orders to the applicant – where the applicant failed to comply with the orders – whether the onus is upon the applicant to ensure that an accurate address for service is provided to the court and other parties – whether in failing to give the applicant the opportunity of an interpreter assisting him when he attended court amounts to a failure to accord the applicant procedural fairness – obligation of court to provide interpreter – denial of opportunity to understand proceedings by failure to provide interpreter – fundamental right of all litigants to properly participate in litigation at all stages. |
Federal Magistrates Court Rules 2001, Rule 13.10(a)
MZWQJ v Minister for Immigration [2005] FMCA 1151
Taunque v Minister for Immigration [2005] FMCA 1400
MZWOQ v Minister for Immigration [2005] FMCA 1168
| Applicant: | MZXBX |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 795 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 12 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondents: | Ms M.D. O'Regan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application be further adjourned for hearing at 10.15 am on
30 November 2005.
The Applicant shall file and serve any affidavit and/or submissions in support of the application to set aside the orders made on 2 March 2005 on or before 11 November 2005.
The First Respondent shall file and serve affidavits, if any, or submissions in reply on or before 25 November 2005.
Costs of this day be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 795 of 2005
| MZXBX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
In this matter the applicant had filed an application on 4 July 2005 wherein he sought judicial review of a decision dated 29 January 2004 of the Refugee Review Tribunal (“the Tribunal”) which had affirmed the decision of the first respondent's delegate to refuse the applicant a protection visa.
The application filed on 4 July 2005 was in similar terms to an application previously filed on 2 September 2004. That application was the subject of orders made by the court on 2 March 2005 dismissing the application and ordering the applicant to pay the respondent's costs. I shall refer further to that order of 2 March 2005 in some detail further in this judgment.
When the matter came before this court on 3 October 2005 it was noted that a notice of motion returnable on that day and filed by the first respondent sought dismissal of the application and did so on the basis that the application was an abuse of process having already been the subject of a decision on 2 March 2005. In the alternative, it was submitted the application should be dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (“the rules”) on the basis that no reasonable cause of action was disclosed.
The applicant was unrepresented and required the assistance of a Russian interpreter. He intended by his application filed on 4 July 2005 to set aside the order which had been made on 2 March 2005. He did not intend to file a fresh identical application to that application which had been the subject of the dismissal order.
Accordingly, given that the applicant was unrepresented, I made procedural orders in the following terms on 3 October 2005:
i)The application filed 4 July 2005 be deemed to be an application to set aside orders made on 2 March 2005 pursuant to rule 16.05 of the Federal Magistrates Court Rules 2001.
ii)So much of the court rules be dispensed with which would prevent that application being heard and determined at 10.15 am on 12 October 2005.
iii)The applicant shall file and serve further affidavits in support of his application by 4 pm on 7 October 2005 with the affidavit to include reference as to whether the applicant was present when orders were made by the court on 19 November 2004; whether the applicant received a sealed copy of the orders made by the court on 19 November 2004 and, if so, any reason the applicant has for not complying with those orders; and further any reason the applicant has for not attending court on 2 March 2005.
iv)The respondent shall file and serve any affidavits in reply by 4 pm on 11 October 2005.
Other orders were made adjourning the matter for hearing on 12 October 2005 and costs were reserved. Pursuant to those orders made by this court on 3 October 2005 the applicant filed a further affidavit sworn by him on 7 October 2005. The first respondent filed a further affidavit of Maria Denise O'Regan sworn on 11 October 2005.
The applicant had previously filed and sought to rely upon an affidavit sworn by him on 4 July 2005; and the first respondent, an affidavit of Ms O'Regan sworn 31 August 2005. Hence, at the hearing of this matter on 12 October the application before the court was one whereby the applicant sought to set aside orders made in his absence on 2 March 2005. It is further appropriate to note at the outset that the applicant, who is unrepresented, was assisted by a Russian interpreter before this court and in addition to providing affidavit material otherwise gave oral evidence and was cross‑examined.
When the hearing concluded the court indicated to the parties that in the circumstances it was preferable to determine whether or not the applicant had provided any or any reasonable explanation for his non‑appearance on 2 March 2005 when his substantive application was dismissed.
The further issue of whether the applicant has an arguable case is to be determined depending on the outcome of this decision. If the court were minded to make a finding in favour of the applicant that he has provided a sufficient basis upon which he court should set aside the order as a result of explaining his non‑appearance on 2 March 2005 then it is agreed that the court would then proceed to consider, based on affidavit evidence, whether or not the applicant has an arguable case.
It is noted in the present case that when the matter was dismissed on 2 March 2005 the Federal Magistrate then presiding provided brief written reasons for that decision which were revised from the transcript and apparently a copy was sent to the parties; although in passing it is noted that the applicant claimed not to have received a copy of those reasons from the court. Unfortunately, there is no indication on the court file that the reasons for the decision and/or the orders made on 2 March 2005 were forwarded to the parties.
It is appropriate to set out the chronology, in part to understand the proceedings and further in order to understand the applicant's claim in support of the application to set aside the order made on 2 March 2005.
The Tribunal made a decision on 29 January 2004. On 2 September 2004 the applicant filed an application in the Federal Magistrates Court to review the Tribunal’s decision. That proceeding was allocated file number MLG 1145 of 2004 (the first application). The application when filed was given a hearing date of 16 February 2005.
According to the court file in the first application, a document entitled "Notice of Listing" dated 12 November 2004 was prepared and apparently forwarded to the parties. The document does not indicate that it was an amended notice of listing, though the body of the document states the following:
Please note that the above proceeding has been relisted for Directions in the Federal Magistrates Court of Australia as follows:
FEDERAL MAGISTRATE: Riethmuller FM
DATE: 19 November 2004
TIME: 10 am
PLACE: 305 William Street, MelbourneThe notice further provides for the parties to contact a court officer and provides telephone details. I note in passing that 12 November 2004 was a Friday and hence conclude that in the ordinary course of post the parties would have received the notice on Monday, 15 November 2004, thereby giving the parties some four days' notice prior to the re‑listed hearing. It is further noted that the parties were advised that this was to be a "directions" hearing and not described, as indeed appears on the original application, as simply a "hearing date".
The applicant, who was then residing at an address - which I shall refer to as the “Golf Road address” in Oakleigh, apparently received the notice from the court, and there is no dispute that he attended the court on 19 November 2004. On that occasion was not represented and did not have the assistance of an interpreter.
The applicant gave evidence that when he attended court on 19 November 2004 he arrived approximately half an hour before the scheduled hearing time and advised a court officer in registry that he required an interpreter. He claims, and I accept, that he was then told the hearing would be a short hearing and that he would not need an interpreter.
He further claimed, and I accept, that he again mentioned the need for an interpreter when he arrived at court and that he had specifically been told that he would not require a court interpreter. He claimed, and
I accept for present purposes in the absence of any contradictory evidence from the first respondent, that he mentioned to the presiding Federal Magistrate that he didn't understand English and could not understand what the presiding Federal Magistrate was saying. No interpreter was provided and the hearing continued.
The applicant claimed that his girlfriend was present in court who was able to assist him to some extent with English, though the impression he had when he left court was that the matter had been listed for final hearing on 27 June 2005.
It is common ground that on 19 November 2004 there were a large number of applications which had been re‑listed on that date with orders made which related to the further conduct of proceedings and where final hearing dates were fixed. The applicant, it is conceded, was one of a number of applicants appearing before the court on that busy day.
The court file in the first application reveals that orders were made on 19 November 2004. A copy of those orders appears on the court file. There is no evidence on the court file to suggest that the court forwarded the orders to the parties.
The court order itself which appears on the court file refers to the file number but otherwise does not refer to the parties; it does not indicate who appeared on that occasion. There is no indication as to whether or not an interpreter was present, although it is concluded on the evidence that indeed, despite the request by the applicant, an interpreter was not provided.
The orders made by the court on 19 November 2004, which, as I have indicated do not have the court heading or make references to appearances, contain the following orders:
IT IS ORDERED THAT:
1. The respondent do file and serve a court book by not later than 20 December 2004;
2. The applicant do file and serve any amended application for an order to review with proper particulars of the grounds relied upon 21 days after receiving the court book;
3. The applicant do file and serve a supplementary court book, if any, within 10 weeks of today's date;
4. The applicant do file and serve contentions of fact and law 21 days after receiving the court book;
5. The respondent do file and serve contentions of fact and law 14 days after receiving the applicant's contentions;
6. The application be listed for hearing on 27 June 2005 at 2.15 pm;
7. Costs be reserved;
8. Liberty to apply in the event of non‑compliance.
It is perhaps unfortunate that the orders made on that occasion do not appear to contain the court heading and that there is no evidence on the file that the orders were forwarded to the parties. However, it is apparent from the affidavit material relied upon by the first respondent that she had sought by correspondence to bring certain matters to the attention of the applicant and had enclosed copies of relevant documents, including, as I understand it, a copy of the court book.
It is noted from the orders made on 19 November 2004 that the time frame in relation to those matters to be undertaken by the applicant, save for one event, appeared to rely upon a calculation being made by the applicant of a period of time after service of the "court book". In his evidence the applicant stated that he did not know what was meant by the term "court book".
It is not unusual for applicants to have little or no familiarity with court proceedings and to therefore have little or no understanding of terminology taken for granted by those of us who regularly deal with matters of this kind. Hence, I have little trouble accepting that the applicant, who was unrepresented and unable to speak English, would not understand what was meant by "the court book".
Unfortunately the service of the court book became the basis upon which other orders were made in relation to the filing of an amended application and the filing and service of contentions of fact and law. Both were linked to days "after receiving the court book". The content of the orders made on 12 November 2004 together with the fact that despite the request for an interpreter and the apparent difficulty the applicant had in the absence of an interpreter become significant in this application to set aside orders later made on 2 March 2005.
I note from the affidavit material of the first respondent that by letter dated 11 February 2005 a notice of motion was forwarded to the applicant. A covering letter dated 11 February 2005 relevantly contains the following:
Finding enclosed, by way of service, copy notice of motion and affidavit in support of Maria Denise O'Regan sworn 11 February 2005 filed with the Federal Magistrates Court.
The notice of motion is listed for hearing on 2 March 2005 at 2.15 pm at which time we will be seeking orders that your application be dismissed in light of your non‑compliance with the orders of Reithmuller FM dated 19 November 2004. Please ensure that you attend at the hearing.
As I understand the evidence from the first respondent, it is not claimed that a sealed copy of the orders made by the court without the court heading were forwarded by the first respondent at any time. However, it is noted that in the affidavit of Maria Denise O'Regan sworn 11 February 2005 a copy of those orders is annexed as exhibit MOR1. Further, it is noted in the same affidavit that a letter dated 24 December 2004 is exhibited which encloses by way of service the court book in the matter addressed to the applicant at the Golf Road address.
It is otherwise noted that in the same affidavit a letter dated 17 January 2005, again addressed to the applicant at his Golf Road address, reference is made to what are described as "attached to orders made on 19 November 2004" with a reference to those orders being attached and a claim that those orders were sent by letter dated 8 December 2004.
During the course of this hearing the first respondent gave an undertaking to provide an affidavit verifying that the letter dated 8 December 2004 was forwarded. Since the decision of the court was reserved on this point, the affidavit has been received, which now enables the court to conclude positively that at least the first respondent forwarded a sealed copy of those orders under cover of letter dated 8 December 2004.
In the letter of 17 January 2005 the first respondent's solicitors state the following:
Orders 2 and 4 state that you must file and serve an amended application containing proper particulars of the grounds relied upon and contentions of fact and law 21 days after receiving the court book. You were served with the court book in this matter under cover of letter dated 23 December 2004.
We have not yet received your amended application or contentions of fact and law.
If we do not receive your amended application and contentions of fact and law before 25 January 2005 we expect to receive instructions from our client to make an application to the court to have your application dismissed and we will also seek an order that you pay our client's costs of the application.
There are a number of conclusions which can be reached having regard to the chronology of events now recited. The first conclusion is that the applicant did not apparently receive a sealed copy of the orders made by the court from the court, though did receive a copy of those orders attached to the correspondence from the first respondent with the first item of correspondence being a letter dated 8 December 2004 and the second by correspondence dated 17 January 2005 and further there is an annexure to the affidavit of Ms O'Regan sworn 11 February 2005.
All of the correspondence would appear to have been forwarded to the applicant at his Golf Road address. In his evidence before this court the applicant stated that he had stopped living at the Golf Road address by the end of May 2005 and otherwise described what had been a somewhat turbulent relationship with his partner at that address which ultimately led to him leaving the address, as indicated at the end of May 2005.
I conclude from the material, including the applicant's oral evidence and affidavit evidence that at least in the months of December 2004, January and February 2005 that the applicant's place of residence continued to be the Golf Road address. It is noted, however, that in the applicant's affidavit sworn 4 July 2005 he annexes an envelope which apparently had been forwarded by the court on 12 April 2005, presumably enclosing copies of orders and the judgment delivered more than a month earlier on 2 March 2005 and where the envelope has the Golf Road address crossed out and with the words written on it, "He didn't live here. Return to sender." That envelope was apparently provided to the applicant when he attended court expecting his matter to be heard on 27 June 2005. There is no dispute that he did not attend court on 2 March 2005 and hence the application to set aside that order made in his absence.
It is clear from the affidavit material that after attending court on 27 June 2005 the applicant then realised that his application had been dismissed in his absence and filed the application currently before this court which I have deemed to be an application to set aside the earlier order. Having filed the application on 4 July 2005, that is, approximately one week after attending court on what the applicant thought was the scheduled hearing date, it is noted that the matter was then the subject of orders made by this court on 3 August 2005 where a registrar determined the application should be heard on a date to be fixed by the court after 24 August 2005 and made other ancillary orders, including the joinder of the Refugee Review Tribunal as a second respondent. The first respondent, as indicated earlier, then filed a notice of motion on 1 September 2005 which, for present purposes, is no longer relevant.
As I have indicated, this court made certain orders on 3 October 2005 when the matter was listed before the court. Again, it is not clear from the court file how the applicant came to be advised of the hearing date before this court of 3 October 2005. Nevertheless, it is clear the applicant attended in person on that date.
This court in other applications to set aside orders, when confronted with evidence from an applicant that he did not receive notices of hearing and/or copies of orders by a court forwarded to the address for service on an application, has taken the view that the onus is upon an applicant to ensure that an appropriate and up-to-date address for service is provided to the court and the other parties (MZWQJ v Minister for Immigration [2005] FMCA 1151; Taunque v Minister for Immigration [2005] FMCA 1400; MZWOQ v Minister for Immigration [2005] FMCA 1168).
It is clear to me that in matters of this kind there is an onus upon the applicants, regardless of domestic circumstances, to make appropriate arrangements for the safe receipt of correspondence, particularly when applicants are aware that they have court proceedings which are pending.
In this case it is clear that by his attendance on 19 November 2004 the applicant was aware that an alternative scheduled hearing date of 16 February 2005 had been altered. It is perhaps not quite as clear, however, that the 27 June 2005 hearing date had been changed because in fact that date was not the subject of any amended notice of listing and nor was it the subject of any orders at all made by the court on 2 March 2005 vacating that very date. Instead the hearing date of 2 March 2005 owed its existence entirely to the notice of motion filed by the first respondent. That notice of motion depends upon the applicant having received and understood the orders made by the court on 19 November 2004 as the notice of motion seeks dismissal of the application pursuant to rule 13.03(1) of the Rules which provide a power to dismiss:
If a party fails to take a step required by these rules or to comply with an order of the court.
This case raises matters of concern, not necessarily arising out whether or not the applicant received a sealed copy of the orders made on 19 November 2004, but whether in the circumstances he ought to have been given the opportunity of an interpreter assisting him when he attended court on that date to assist him to better understand those orders and further, whether he has a reasonable excuse for either not receiving the orders and/or receiving them, not understanding their full significance.
If this case depended solely on the court making findings that the applicant had received at his address for service relevant documents, then I would have little sympathy for the applicant. It seems clear to me that the first respondent and her lawyers have behaved in an exemplary fashion by forwarding to the appropriate address all relevant documents which I find were forwarded to the appropriate address for service. Those documents include not only the orders made on 19 November 2004, but also the court book and I accept the notice of motion returnable on 2 March 2005 and the supporting affidavit.
A combination of all those documents clearly, in my view, discharges any duty the first respondent would have complying with the requirements of the court and indeed, otherwise conducting herself as a model litigant.
The matter of concern, however, to this court relates to the foundation stone upon which the noncompliance notice of motion was issued and upon which the substantive application was dismissed. The orders made on 2 March 2005 do not refer to the notice of motion, nor do they refer to the specific rule relied upon the court in dismissing the applicant. I infer, however, that those orders which refer to the "proceedings coming on before the court" that the court intended to mean upon hearing the first respondent in relation to the notice of motion and further note the order correctly states there was no appearance on behalf of the applicant. I further infer from the brief reasons for judgment revised from transcript, albeit forwarded to the applicant apparently some six weeks after the hearing date, that the basis upon which the decision was made was indeed the ground relied upon in the notice of motion, namely that the applicant had not complied with the earlier orders.
However the clear conclusion that I reach in this matter is that the applicant had sought the assistance of an interpreter which, if provided, in my view may well have assisted the applicant to understand the full extent of his obligations arising from the orders made on 19 November 2004. Where an applicant before a court attends court, albeit on a busy day where numerous directions are made in relation to a high volume of matters, that does not mean that the applicant should be denied the opportunity of understanding what has occurred in court.
In this case very significant orders were made which had the potential to result, as indeed has been the case, in dismissal of a substantive application. The fact that the first respondent has, to some extent, assisted the applicant by forwarding the relevant documents does not necessarily mean, despite the explanation in covering letters, that the applicant would be fully cognisant of his obligations under those orders.
When delivering orders to a non-English speaking party, it is incumbent upon the courts to ensure, in my view, if requested, that an interpreter is present so that any confusion arising out of orders would be avoided. Had an interpreter been present when the orders were announced, then I would have little doubt in this case that the applicant would at least have understood what had been said by the court, thought given the form of the orders, may have been troubled when it came to calculating the days and thereby fixing a date by which action had to be taken. In this case, despite the request for assistance for an interpreter, no interpreter was provided and there does not appear to be any assistance offered to the applicant by way of interpreter.
Although I note in passing that affidavits relied upon by the applicant are handwritten and do not have particulars of jurat provided by an interpreter, I am prepared to conclude that given the brief nature of that affidavit material that the applicant has received some assistance in at least preparing those documents.
In the present case the court is the apparent inadequacy of the procedure, namely, a denial of the availability of an interpreter. This resulted in a failure to adequately communicate the obligations of the applicant arising from orders made in the presence of the applicant, though in the absence of an interpreter. The court has to weigh up those difficulties with the obvious conclusion that it can reach that the material has ultimately been provided to the applicant in the appropriate manner.
It is the applicant who has not made appropriate arrangements to ensure that his mail has been forwarded. It is clear, at least from the envelope which has the date 12 April 2005 stamped upon it and which was "returned to sender" that as at that date, although the applicant claims to be living at the Golf Road address in a somewhat turbulent relationship until the end of May 2005, that on that occasion the letter addressed to the applicant was returned. It is reasonable to infer he returned perhaps during a period of time when the applicant and his partner had what he described as one of a number of disagreements involving short separation periods.
In my view the overriding factor to take into account in considering whether or not to set aside an order is to determine whether indeed an applicant has provided any or any reasonable explanation for non‑attendance on the day upon which orders were made dismissing the application. It is clear that if the court were to accept the explanation in a case of this kind, that it further has a duty to consider whether in any event the applicant has an arguable case. As I indicated earlier, that issue is deferred by agreement pending the outcome of the court's determination on the preliminary issue in this instance, as it will require further affidavit material and/or perhaps evidence to be given by the applicant and others before the court.
I do note in passing that a key issue involving the substantive application is the fact that the applicant was apparently invited to attend the tribunal hearing and failed to do so, leading somewhat inevitably to the tribunal then making adverse findings against the applicant and affirming the delegate's decision to refuse to grant a protection visa. That fact, however, cannot be used against the applicant in considering whether he has provided any or any adequate explanation to this court for his non-attendance on 2 March 2005.
There is a difficult balance in this case that is required to be struck between the proper administration of justice acknowledging what I have indicated to be the appropriate role of the first respondent and her lawyers and on the other hand, ensuring that applicants who are non-English speaking are given a proper opportunity to appear before a court and to be heard. Perhaps not surprisingly the applicant, when asked to make submissions in this court simply indicated that the hearing took place in his absence and he stated, "I do not know what the evidence was and would like to have participated in the proceeding a bit more."
It is the fundamental right of all litigants to properly participate in litigation at all stages. I do not accept that directions orders should necessarily be regarded as mere formalities or of a trivial nature, particularly when they provide the trigger mechanism, as in this case, for the ultimate dismissal of an application on grounds of noncompliance with those orders.
The significance of a time frame leading, as it does, to an application for dismissal on the grounds of noncompliance must be regarded as a significant step in the judicial process.
Although I am satisfied that the documents were ultimately served upon the applicant, I further conclude that it was not necessarily clear on the face of the orders made on 19 November 2004 that the applicant had specific obligations to meet by certain specified dates, given that those dates were referred to and depended upon an understanding of what is meant by a "court book".
Further, I conclude that the denial of a request for the provision of an interpreter meant that the applicant was not then able to participate in those proceedings where directions were made. I do not see any reason why applicants who are non-English speaking should not have the opportunity to properly participate in all court hearings, including those where directions are made. Had that been the case in this application then I doubt very much whether the applicant, if properly advised and when considering the orders, would not at least have had an understanding that he was obliged to comply with those orders within a certain time frame, albeit that the time frame may have been hard to determine.
It is that combination of circumstances which leads me, in this instance, to conclude that it would be in the interests of justice in the exercise of my discretion to accept and make a finding that the applicant does indeed, on the basis of that material, have an acceptable explanation for his non-attendance at court on 2 March 2005.
There are a number of issues that arise in this case which indicate perhaps the desirability of ensuring that interpreters are made available, that orders are in clear terms setting out a time frame specifying precise dates and, whether the court itself provides orders in a form where the parties are identified in the court heading and on the court file some record is maintained by way of a covering letter, the date upon which orders are forwarded to parties, including the applicant addresses. If all those steps are taken, then it is unlikely that the court would be troubled, as it has been, by an application of this kind.
It is not appropriate at this stage to set aside the order made on 2 March 2005, but rather to indicate to the parties that the matter will be further considered and directions made in relation to the filing and serving of affidavits concerning whether or not the applicant has an arguable case. Upon receipt of that information the court will then proceed to make a final determination as to whether or not this is a case where it is appropriate to set aside orders made in the absence of the applicant on 2 March 2005.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 October 2005
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