NANT v Minister for Immigration (No.2) - [2003] FMCA 557

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANT v MINISTER FOR IMMIGRATION (No.2)

[2003] FMCA 557

MIGRATION – Application pursuant to Rule 16.05 Federal Magistrates Court Rules 2001 – to set aside judgment – dismissed.

Applicant:

NANT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1019 of 2003

Delivered on:

5 November 2003

Delivered at:

Sydney

Hearing Date:

5 November 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Clayton Utz Lawyers

ORDERS

That the application to set aside the judgment of 4 November 2003 be dismissed.
That the applicant pay the respondent's costs set in the amount of $250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1019 of 2003

NANT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application to set aside orders made by the court in the absence of the applicant. She did not appear when the matter was called on for hearing yesterday at 10.15 on 4 November 2003. Nor did she appear when the matter was adjourned until 10.30. Nor was she able to be contacted on the contact telephone number which was provided to the court by her. Her application for review of a decision of the Refugee Review Tribunal refusing to grant her a protection visa was dismissed.
The application is in effect an application under Rule 16.05 of the Federal Magistrates Court Rules, in particular 16.05(1) which provides:
The Court may vary or set aside its judgment or order before it has been entered.
The ground on which this application is brought is set out in the applicant's affidavit of 5 November 2003 in which she states that because she moved from Homebush to Parramatta she did not receive papers and that she had forgotten the hearing date.
In oral submissions this morning she stated that she moved home two weeks ago. She also told the Court that she had understood that the matter was listed for hearing on 5 November 2003. She initially stated that she recalled that it was listed at the directions hearing for today

5 November 2003, but subsequently clarified this to say that she had not attended the directions hearing but that her sister (who also had an application before the Court which was listed for hearing on

5 November 2003) had attended the directions hearing and had told her that the hearing was set down for 10.15 on 5 November, 2003. Her sister has now left the country. The applicant stated that she contacted the court on the afternoon of 4 November 2003 and was then told that the matter had been dealt with that morning. She claimed that she had not received any notification that her hearing was fixed for

4 November 2003.
When asked what errors she claimed there were in the Tribunal decision she stated that she believed that the Tribunal was pushed to a position where it had to make an adverse decision because she had not established the claims for review in the proper manner.
The relevant authorities in relation to an application of this nature were, as submitted by the solicitor for the respondent, to the effect that there is a need for caution in exercising the jurisdiction to set aside a judgment. It is necessary to consider all of the circumstances in particular the reasons for non-attendance and whether there was a reasonable excuse through no fault of the applicant and also - and this is the relevant touchstone - whether the applicant has an arguable case in relation to the original application. In the context of this case it is necessary to consider whether there is an arguable case that there is a jurisdictional error in the decision of the Refugee Review Tribunal affirming the decision to refuse to grant the applicant a protection visa which was handed down on 18 March 2003.
It is the case that both the applicant and her sister had applications before the court. The file records reveal that the applicant did not attend the directions hearing on 2 May 2003 and I accept that the applicant may have been told by her sister that there was a hearing on

5 November, 2003 at 10.15 as that was the time set down for the hearing of the sister's application.
However, not only do the short minutes of order made on 2 May 2003 by Sackville J indicate that this applicant's matter was listed for hearing at 10.15 on 4 November 2003 but, further, a letter was sent to her by the court at the address provided by her for service on 6 June 2003 advising her that her hearing was on 4 November 2003. The respondent’s solicitor also indicated that they wrote to the applicant on 6 May 2003 to the same effect. The applicant told the court that she moved from that address two weeks ago but this is some considerable time after notification of the hearing date.
Despite the discrepancy between what the applicant said in her affidavit as to having forgotten the hearing time and what she told the court today, because of the possibility of confusion with the time for her sister's hearing, if she were able to show that she had an arguable case I would set aside the order which I made dismissing her application. However, I am satisfied that no purpose would be served by such a procedure as she does not have arguable case.
In her application for review of the Tribunal decision and accompanying affidavit filed on 11 April 2003 the applicant identifies no ground for review of the Tribunal decision. She did not file any amended application or written submissions as directed.
When I asked the applicant what her grounds were for contending that there were errors in the decision of the Tribunal, she indicated that she felt that the Tribunal was pushed to a position where it had to make an adverse decision because she had not elaborated her claims for review in the proper manner. Such a claim does not establish any jurisdictional error.
In that respect it is relevant that the applicant was invited by the Tribunal to attend a hearing as it was unable to make a favourable decision on the information that she had provided. Despite adjournments and then acceptance of the invitation, the applicant did not appear before the Tribunal. Her then migration agent requested the Tribunal to make a decision on the papers because she did not wish to appear. The applicant, who is from Sri Lanka, claimed to fear persecution by reason of imputed political opinion as a supporter of the LTTE based on her sister’s membership of that organisation. The Tribunal found that the claims set out in her application were couched in such general and vague terms that it could not establish the relevant facts. Without further detail the Tribunal was unable to be satisfied that the applicant or members of her family had had any contact with the LTTE and been detained by the authorities on the basis of an imputed political opinion of association with the LTTE as claimed. On the material before me there is nothing which discloses any suggestion of error in the Tribunal reasons for decision.
In these circumstances I am not satisfied that the applicant has any arguable case in relation to her application for review of the Tribunal decision. Therefore, even if I accept that the applicant was confused as to whether her hearing was yesterday or today, I do not propose to re-open or vary the orders which I made dismissing her application.

RECORDED : NOT TRANSCRIBED

The respondent seeks that the applicant pay the costs of today set in the sum of $250. The applicant claims that she is not in employment, is supported by her parents and seeks that there be no order as to costs. However, the applicant has been wholly unsuccessful and there is nothing in the circumstances of this case that makes it inappropriate that she should meet the costs of the respondent. Her impecuniosity is not a reason for failing to award costs, although it may be a matter taken into account by the Minister in seeking to recover costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 5 November 2003