NAVY v Minister for Immigration - [2005] FMCA 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAVY v MINISTER FOR IMMIGRATION

[2005] FMCA 223

MIGRATION – Application by way of notice of motion to set aside orders dismissing application for non-appearance of applicant – no appearance by Applicant at hearing of notice of motion – application of Rule 13.03A(d).

Applicant:

NAVY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 376 of 2004

Judgment of:

Barnes FM

Hearing date:

25 February 2005

Delivered at:

Sydney

Delivered on:

25 February 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the applicant’s application under Rule 16.05 of the Federal Magistrates Court Rules is dismissed.
That the applicant pay the respondent's costs set in the amount of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 376 of 2004

NAVY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application commenced by way of notice of motion filed by the applicant on 4 February 2005, seeking that the court set aside orders it made on 23 July 2004 pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules dismissing the applicant's application for review of a decision of the Refugee Review Tribunal because of the applicant's failure to appear on that day.
The applicant relies upon the notice of motion and an affidavit sworn and filed by him on 4 February 2005. After filing the notice of motion he was notified by letter sent by the court to the address provided by him on the notice of motion, of the hearing date and time in relation to his notice of motion. He did not appear at the time at which the matter was listed. However, he could not be contacted on the telephone number provided on the notice of motion. Nor did he appear after the matter was stood down. It is now half an hour after the matter was listed for hearing and he has not appeared. I note that this is in fact the day on which the hearing of his application for judicial review (which was dismissed on 23 July 2004) was originally listed.
The background to this application is that the applicant, who claims to be a citizen of the Peoples Republic of China, arrived in Australia on 10 November 2001. On 4 November 2002 he applied for a protection visa. It was refused and he sought review by the Tribunal.
The Tribunal wrote to the applicant and to his migration agent, inviting him to a hearing, informing him that it was unable to make a favourable decision on the information before it. A signed response to hearing form was returned to the Tribunal in which the applicant indicated that he did not wish to come to a Tribunal hearing. That advice was received by the Tribunal on 1 August 2003. The Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It affirmed the decision of the delegate of the respondent.
The applicant sought review of the Tribunal decision by proceedings commenced on 22 September 2003. The grounds for review are relevant. They are that the Tribunal ignored parts of the applicant’s claims in the statement attached to ‘her’ application for the visa, and in doing so ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation. An affidavit filed on the same day repeated the grounds.
The applicant filed a notice of a change of address for service on
27 October 2003. He filed a further notification of change of address for service on 16 December 2003, which was served on the solicitors for the respondent. He attended a directions hearing on 17 December 2003. The matter was transferred to this court from the Federal Court. The applicant was ordered to file and serve an amended and fully particularised application by 30 March 2004. The matter was listed for hearing today at 10:15am on 25 February 2005. On 23 February 2004 the applicant filed a further notice of change of address for service and on 24 June 2004 another notice of change of address for service, albeit that it in fact it contained the same address as the one filed in February 2004.
The applicant did not file and serve an amended application either before or after 30 March 2004. On 2 June 2004 the solicitors for the respondent wrote to the applicant. They wrote to the applicant at the address that had been provided for service in the notice of change of address for service filed on 16 December 2003 advising the applicant that as he had not complied with the order for filing and service of an amended application the matter had been listed for summary dismissal on 23 July 2004. I am informed in submissions and I accept that the respondent has no record of having been served with copies of the later notices of change of address for service.
On 23 July 2004 the applicant did not appear. I made orders dismissing the application for review of the Tribunal decision pursuant to Rule 13.03A(c). The application filed by the applicant by way of notice of motion relates to the orders made on 23 July 2004. As indicated, the applicant has not attended today, despite the fact that he was notified of the listing by letter sent to the address for service provided on the notice of motion and also on the accompanying affidavit, and despite the fact that this was in fact the date originally set down for his hearing. There is no explanation from him as to why he is not here today.
Given the background to these proceedings, the respondent sought that rather than dismiss the matter (again) for non-appearance under Rule 13.03A(c), the court proceed with the hearing generally under Rule 13.03A(d). In the particular circumstances of this case I consider that this is appropriate and that I should deal with the applicant's application to set aside the orders that were made in his absence.

I have his notice of motion and his affidavit that provides an explanation for his non-appearance. The court has power to set aside the orders under Rule 16.05 of the Federal Magistrates Court Rules. However for the reasons I shall give, in all the circumstances of the case, I do not consider that this is an appropriate case to set aside the orders that I made or 23 July 2004.
The explanation for the applicant’s failure to attend on 23 July 2004 is that he did not receive the letter notifying him of his inclusion in the non compliance list. While he refers to a letter from the Federal Court, it appears that the notification of the listing to which he refers is the letter sent by the solicitors for the respondent. He attests that he changed his address in April 2004 and notified the Department of Immigration but not the court (in other words he does not suggest that the notice of February 2004 and the duplicate notice of June 2004 related to this change). He states that he thought the Department would tell the court. However, there are a number of problems with this explanation. First I accept that the respondent was not served with the notice of change of address filed in February and June 2004. The applicant was aware of his obligation to serve the respondent’s solicitor with a copy of such notice. He had, either himself or through a migration agent, filed and served a notice of a change of address in December 2004. I do not accept that the applicant was not aware of the need to file and serve a notice of change of address with the court. He filed four notices of change of address with the court. He claimed that he thought all he needed to do was come to court on 25 February 2005 for the hearing, but that, of course, is inconsistent with his filing of notices of change of address after the hearing date was set. Moreover, he is not here today. He has provided an explanation for his absence on 23 July 2004 (non-receipt of the notification) which I accept but it is not an adequate explanation as the reason he failed to receive the notification was his failure to notify the court (and the respondent’s solicitors) of his change of address in April 2004.
Nonetheless, because the notice of the inclusion in the non compliance list was sent to an address from which the applicant now says that he had moved at the time, I have considered all of the other circumstances of the case. Even if I were satisfied that his explanation was an adequate explanation of the circumstances which led to the dismissal for non-appearance, as Tamberlin J said in Chadwick v Yeung (unreported decision of the Federal Court NG3187/1994 2 June 1995), the relevant touchstone is whether there was an arguable case or question raised. In that case it was a question of an arguable case raised by the respondent. Here it is the broader issue of the claims of the applicant and whether it would be futile to set aside the dismissal.
There are a number of relevant matters. Not only did the applicant not file and serve necessary notices of change of address for service, but also he did not file an amended application despite having been made aware of the need to file and serve a particularised amended application. He attended the directions hearing when the order was made. He had the assistance of a Mandarin interpreter. He did not file and serve any amended application either by the date ordered or subsequently. Nor does his notice of motion or affidavit suggest in any way that he is willing or able to file or provide any amended application with particularised grounds.
Turning to his application and the Tribunal decision, the application itself is unparticularised. It does not on its face disclose any arguable case. He complains generally that the Tribunal ignored part of the claims in a statement attached to ‘her’ application. It appears that this is something of a pro forma application as the applicant is not female. However, I have had regard to the claim.
In a statement attached to the protection visa application the applicant claims to fear persecution because he was a Falun Gong practitioner. When he applied to the Tribunal for review he merely stated, ‘See my departmental file’. The Tribunal informed him by letter sent to the address for service that it was unable to make a favourable decision on the material before it and invited him to attend a hearing. That letter was sent on 30 July 2003.
A response to hearing invitation was returned to the Tribunal, signed by the applicant on 1 August 2003 indicating that the applicant did not want to come to a hearing and consenting to the Tribunal proceeding to make a decision without taking any further action to allow him to appear before it. The Tribunal did so and there is nothing in the material before me to suggest that in any way it failed to meet its obligations under section 425 of the Migration Act 1958 or that the notice did not comply with section 425A of the Migration Act or that the Tribunal was not entitled to proceed as it did under section 426A.
Clearly, the applicant received the notification of the Tribunal hearing, either himself or through his migration agent, and chose, for reasons that have not been explained, not to attend the Tribunal hearing. The Tribunal accurately summarised the applicant's claims in the statement attached to the protection visa application, contrary to the applicant's claims in the application for judicial review. It considered those claims in detail, despite noting that they were extremely vague and general.
It gave reasons for its conclusions based on independent evidence. It accepted independent evidence over unsubstantiated claims made by the applicant. It had regard first to the fact that he had been able to depart Australia legally, found that that meant that the Chinese authorities were not looking for him and drew his claims into serious question. It found his claims about the extent of his parents' involvement in Falun Gong and what had occurred because of that to be at odds with independent country information, which it accepted. It was satisfied that if the applicant was indeed a Falun Gong practitioner he would not have claimed that his parents had leadership responsibility and organised activities as he did. It had regard to the fact that he did not claim to have practised Falun Gong in Australia.
Moreover, the Tribunal had regard to the 12 month delay before the applicant applied for a protection visa after arriving in Australia. It was satisfied that if he had suffered as claimed he would not have waited

12 months to apply. Based on all of the above, it was not satisfied that the applicant was or ever had been a Falun Gong practitioner. It did not accept those claims or others that flowed from them. In other words, the Tribunal decision turned on the credibility of the applicant’s unsubstantiated claims as made in the statement attached to the protection visa application in circumstances where the applicant chose not to attend a hearing.
On the material before the court it cannot be said that there is an arguable case the Tribunal has ignored parts of the applicant's claims. There is nothing to suggest that there is any arguable case that the Tribunal erred in the manner in which it made its decision. Matters of credibility are matters for the Tribunal. There is nothing to suggest that its findings were not open to it on the material before it or that it ignored relevant material or otherwise erred in the very general manner contended.
Beyond that I have also considered the Tribunal decision and the information before me. There is nothing to suggest that there is any arguable case of a jurisdictional error in the decision or procedure of the Tribunal on the material before the court. In those circumstances the applicant does not have an arguable claim. It would be futile to reinstate his application. I should mention that the applicant’s delay in filing the notice of motion was not a matter of significance to my decision. It was however of less importance than might otherwise be the case because as the respondent’s solicitors were not aware of his correct address, he would have been notified by them of the decision dismissing his application to his old address. Obviously he later became aware of the orders. Nonetheless the delay does not loom large as I have taken into account the fact that there may be some explanation for the delay in filing the notice of motion.
Despite this, all of the other factors persuade me that this is not an appropriate case in which I should set aside the orders made dismissing the application for non-appearance.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 10 March 2005.