NBHC v Minister for Immigration - [2005] FMCA 391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBHC v MINISTER FOR IMMIGRATION

[2005] FMCA 391

MIGRATION – Application to set aside dismissal for non–appearance.

Chadwick Pty Ltd v Yeung NG3187/94 (unreported 2 June 1995)

Applicant:

NBHC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2178 of 2004

Judgment of:

Barnes FM

Hearing date:

2 March 2005

Delivered at:

Sydney

Delivered on:

2 March 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 application to set aside the orders made by this court dismissing the applicant's application 14 December 2004 is dismissed.
That the applicant pay the respondent's costs set in the amount of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2178 of 2004

NBHC

Applicant

And

MINISTER FOR IMMIGRATION

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed on 2 February 2005 by the applicant seeking that orders made dismissing her application to review a decision of the Refugee Review Tribunal for non-appearance be set aside. The background to this application is that the applicant made an application for a protection visa which was refused. That decision was affirmed by the Refugee Review Tribunal on 3 June 2003. The applicant sought review of that decision by application filed on 7 June 2004.
The applicant attended a directions hearing on 28 June 2004 with the assistance of an interpreter. On that day orders were made by consent including an order that the applicant file and serve an amended and fully particularised application, an affidavit and any evidence she proposed to rely on by 26 October 2004. In default the respondent was to be able to seek that the matter be listed for further directions.
The matter was transferred to this court. It is relevant to note that when the applicant attended the directions hearing she completed and signed an information form which had been translated to her in which she indicated that she understood that if she changed her home and/or postal address she must write to the court and to the Minister's solicitors advising of her new address.
The matter was transferred to this court from the Federal Court. It seems that initially the applicant was incorrectly notified of a final hearing date on 1 February 2005 was a directions hearing. Subsequently she was advised of a directions hearing on 1 February 2005. The applicant did not file an amended application as ordered. Solicitors for the respondent wrote to the applicant twice in 2004 at the only address for service provided, advising her that if she did not file an amended application they would seek to have the matter placed in the non-compliance list and summarily dismissed.
The matter was placed in the non-compliance list on 14 December 2004. An affidavit was filed in court by the solicitor for the respondent in relation to notifying of the applicant of the listing by letters of

19 November 2004 and 23 November 2004 sent to the address for service nominated in the application for judicial review. The applicant did not attend on 14 December 2004 and her application was dismissed pursuant to Rule 13.03(A)(c) of the Federal Magistrates Court Rules.
As I have indicated, on 2 February 2005 the applicant filed the application that is now before the court. The grounds for setting aside the dismissal that she relies on are that due to a communication problem she was not informed about the hearing date. It appears from her oral submissions that this is a reference to the listing in the non-compliance list on 14 December 2004.
She told the court that her understanding was she needed to be before the court on 1 February 2005. This is consistent with the letters that were sent to her up to August 2004. She filed an affidavit saying that she was residing at her aunt's place, that she had moved and that her aunt did not give her any letters that had been addressed to her at the previous address. She told the court that she moved in September 2004 and did not file the notice of address for service until 1 February 2005.
The applicant has not filed an amended application. I asked her what her concern was with the Tribunal decision. Her response was that she was still being harassed or that her family was and that she wanted to get evidence from Fiji.
The respondent opposes the application to set aside the orders that the court made on 14 December 2004. The court has power under Rule 16.05 of the Federal Magistrates Court Rules to set aside an order made in the absence of a party. I have had regard to whether or not the applicant has provided a satisfactory reason for her non-appearance and also to what Tamberlin J in Chadwick Pty Ltd v Yeung NG3187/94 (unreported 2 June 1995) described as the relevant touchstone: that is whether there is an arguable case or question raised by, in this case, the applicant.
The difficulty that faces the applicant is that while she has given evidence that she moved from her aunt's address, she failed to notify the court of her change of address before 1 February 2005 despite the fact that she was made aware of that obligation at the directions hearing. She has not provided a satisfactory explanation for her failure to notify the court of her move or, indeed, to notify the respondent's solicitors. She acknowledged that she had received a number of earlier letters from the court. The respondent wrote twice to the only address that it had in relation to the non-compliance list. In the circumstances the applicant has not provided an acceptable reason for her non-appearance.
I have, nonetheless, considered as part of all the circumstances, the basis for the applicant's claim that the Tribunal fell into jurisdictional error in determining whether the orders should be set aside. The application that the applicant filed on 7 June 2004 is expressed in very general and unparticularised terms which are not related to the particulars of the decision in issue. She was ordered to file a particularised amended application and did not do so. As expressed the applicant's application for judicial review does not raise an arguable case of jurisdictional error. The only grounds raised by what the applicant has said today take issue with the merits of the Tribunal decision. Merits review is not available in this court. It is not for the court to determine whether or not it considers that the applicant is a refugee; that is the task of the Tribunal. Yet it seems that what the applicant is seeking is for the court to make such a determination on the basis of further evidence.
I have also had regard to the Tribunal reasons for decision. There is nothing on the face of the material before the court to indicate that there is an arguable basis for the applicant's claim of jurisdictional error.
In those circumstances, where the applicant's failure to attend was because of her fault in failing to notify the court of a change of address, where neither she nor the material before me satisfy that there is any arguable case of jurisdictional error on any of the grounds in her application or that an amended application might raise, it would be futile, in effect, to reinstate these proceedings. I do not consider that this is a case in which it is appropriate to set aside the orders that were made in the absence of the applicant dismissing her application.
Accordingly it is ordered that the application to set aside the orders made by this court dismissing the applicant's application 14 December 2004 is dismissed.

RECORDED : NOT TRANSCRIBED

The respondent seeks costs. The applicant indicates that she is not working and unable to pay costs. The applicant's inability to pay the costs at present or her impecuniosity is not a reason for departure from the general principle that the unsuccessful party should meet the costs of the successful party, although it may be a matter taken into account by the respondent in determining when and how to seek to recover any such costs.
The applicant has been unsuccessful. It is appropriate that she meet the respondent's costs. The amount of $500 which is sought is reasonable. It is an appropriate amount in the light of the nature of this and other similar matters.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 1 April 2005.