NALL v Minister for Immigration - [2004] FMCA 246

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALL v MINISTER FOR IMMIGRATION

[2004] FMCA 246

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

PRACTICE AND PROCEDURE – Application to set aside a dismissal order made in the absence of the applicant – whether sufficient cause advanced for setting aside of the earlier order considered – nothing new raised by the applicant – no serious issue to be tried – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)

Australian Fisheries Management Authority v P W Adams Pty Limited No 2 (1996) 66 FCR 349
K M & Chadwick Pty Ltd v Yeung, 06/06/1995, FedCt (NSW) NG3187/94
NAIY v Minister for Immigration [2004] 455
NAJN v Minister for Immigration [2003] FMCA 414
Ponnuswamy v Australian Electoral Commission [2002] FCA 1086

Applicant:

NALL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ674 of 2003

Delivered on:

22 April 2004

Delivered at:

Sydney

Hearing date:

22 April 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms E Warner
Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ674 of 2003

NALL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

I have before me an application filed on 13 April 2004, seeking an order that I set aside orders that I previously made on 2 February 2004, dismissing the applicant's application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) with costs fixed in the sum of $3,800. The order I made on 2 February 2004 was made pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The present application is supported by an affidavit also filed on 13 February 2004. In that affidavit, which I received for the purposes of these proceedings, the applicant states that he would like to appeal against my orders of 2 February 2004 on the grounds that he had no opportunity to present his case because he was sick at the time of the hearing. The applicant states that five days prior to the hearing he submitted an application for adjournment of the hearing of his application. In fact, the applicant has already appealed against my orders dismissing his application for non-attendance.
The Federal Court file N212 of 2004 discloses that on 30 March 2004 Madgwick J stood the appeal over to Tuesday, 27 April 2004 at 9.30am before the duty judge in order to enable the applicant to make an application to this Court to set aside the dismissal order within 14 days. I also note that the respondent Minister has objected to the competency of the appeal due to the absence of an application for leave.
I further note that the respondent Minister has filed, in the Federal Court proceedings, an affidavit made by Elizabeth Norah Jacqueline Warner, filed on 5 March 2004, deposing as to the conduct of the proceedings before me on 2 February 2004 and events leading up to that day. I received that affidavit for the purposes of today's application. The documents annexed to the affidavit are largely duplicated on this Court's file.
I have before me the transcript of the proceedings in this Court on 2 February 2004. I also have before me as exhibits received on that day the applicant's document, which he describes as an application for an adjournment with an annexed medical certificate, a file note of my associate's attempt to contact the applicant by telephone on 30 January 2004, which was unsuccessful, and a copy of a letter written by my associate to the applicant on 30 January 2004, requiring his attendance at court on 2 February 2004, which was accepted at the applicant's address for service by a man named Sergio.
Based on the material before me prior to the hearing on 2 February 2004 I was not satisfied that the applicant had demonstrated a sufficient reason to avoid attendance at court on 2 February. The applicant had presented evidence of a back injury but the information available to me indicated that the applicant's doctor did not consider that the injury prevented the applicant's attendance at court. It was for that reason that my associate wrote to the applicant requiring his attendance.
The applicant did not attend court on 2 February 2004. I adjourned the hearing so that the interpreter and my associate could attempt to contact him by telephone. They were successful in doing so. The applicant confirmed that he had received my associate's letter but he said that he could not understand it. He also stated that he was unable to attend court because of his injury. He was given the opportunity to attend by telephone but said that he was not ready. He said that he wanted to consult a solicitor. I took the view that the applicant had not advanced a sufficient reason for an adjournment and dealt with the matter in his absence. I note that similar circumstances were considered by the Federal Court on appeal from me in NAIY v Minister for Immigration [2004] FCA 455 at paragraphs [39] – [41]and no error was found.
The affidavit filed on 13 April 2004 adds nothing to the material that was available to me on 2 February 2004. In the circumstances, the applicant has failed to advance a persuasive reason why my order should be set aside pursuant to rule 16.05(2)(a) of the Federal Magistrates Court Rules. The issue of the application of that rule was considered by Federal Magistrate Barnes in NAJN v Minister for Immigration [2003] FMCA 414 at paragraph 7. I adopt that paragraph for the purposes of this judgment:
This is not a case where both parties consent to the setting aside of the orders. The respondent opposes such a procedure. The court has a discretion under rule 16.05(2)(a) to set aside a judgment. Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation recognising the tension between the public interest in the expeditious conduct of litigation and the obligation of the court to ensure litigants have the opportunity to present a case where there is a real dispute. The power is generally not to be exercised unless the applicant can show that by accident and without fault on his part the order was made without his being heard. It is necessary to look at the whole of the circumstances. (Australian Fisheries Management Authority v P.W. Adams Pty Limited No.2 (1996) 66 FCR 349).
As was the case in the matter of NAJN, the application to vacate the dismissal order is opposed. In the absence of any persuasive reason why the order should be vacated, I am not minded to grant the relief sought by the applicant. However, I would be minded to vacate that order if I thought there was a serious issue to be tried and the matter could be dealt with expeditiously. Mr Smith drew to my attention paragraph 9 of Federal Magistrate Barnes' decision in NAJN where her Honour said:
It is also necessary to consider what Tamberlin J described in KM & Chadwick Pty Ltd v Yeung 02/06/1995 FedCt (NSW) NG3187/94 at [251] as the ‘relevant touchstone’ and that is ‘whether there is an arguable case or question raised by the person seeking to set aside the judgment’
Mr Smith also took me to the decision of His Honour, Hely J in Ponnuswamy v Australian Electoral Commission [2002] FCA 1086 at paragraph 7. There the Federal Court dismissed an appeal against a decision of mine dismissing an application for non‑appearance. His Honour stated that the most compelling of the reasons why he dismissed the appeal was that the applicant had not established that his application, if ordered to be reinstated, would have reasonable prospects of success.
I had anticipated that if the applicant was able to persuade me that I should vacate the dismissal order he would be ready and willing to proceed with a hearing of his substantive application for judicial review. Rather, to my surprise, he said that he was not. He told me that he had been to see a solicitor. He said that the solicitor was not acting for him but had provided some notes that he wished to have translated. The applicant is seeking not only that I vacate my earlier dismissal order but that I grant him a further adjournment for some indeterminate period so that he can prepare for a future hearing. The application for judicial review was filed originally in the Federal Court on 17 March 2003. The applicant should have been ready for a hearing on 2 February 2004. He should certainly have been ready for a hearing today.
The application for judicial review asserts jurisdictional error but provides no particulars. There is little, if anything, on the face of the application that would give me any confidence that the applicant could succeed on his application. The decision of the RRT, set out in the court book from page 64, establishes that the applicant failed in his protection visa application because he was not believed. There has been nothing advanced by the applicant in the principal proceedings to establish that there is a serious question to be tried. For that reason, and because the applicant has advanced no persuasive reason otherwise why I should vacate my earlier dismissal order with costs, I will dismiss the application filed on 13 April 2004.
On the question of costs, the application being dismissed, Mr Smith seeks an order for costs fixed in the sum of $2,600. The applicant did not wish to present any submissions on costs. On my reading of the fixed event based cost scale in schedule 1 of the Federal Magistrates Court Rules, the scale costs for today's hearing would be the sum of $1,135 plus the daily hearing fee. The daily hearing fee for a half day hearing is $685. That figure is increased by a factor of 150 per cent where a litigant (as here) is properly represented by counsel or by a solicitor advocate. That would have produced a costs outcome somewhat in excess of $2,000. I am satisfied that on party party basis in this Court costs in the sum of $2,500 have properly been incurred for the purposes of today's hearing. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 30 April 2004