NBJC v Minister for Immigration
[2006] FMCA 1760
•17 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBJC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1760 |
| MIGRATION – Visa – protection visa – application for review of RRT decision – where first applicant is a child. PRACTICE & PROCEDURE – Judgment – Set aside judgment – application to set aside judgment after applicants failed to appear – whether sufficient explanation advanced – whether reinstatement futile. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.48A Federal Magistrates Act 1999 (Cth), s.3 |
| Lindon v Commonwealth of Australia(No.2) (1996) 136 ALR 251 |
| First Applicant: | NBJC |
| Second Applicant: | NBJD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3758 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 November 2006 |
| Date of last submission: | 17 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Sirtes |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as Second Respondent to the Application.
Order 1 made on 5 May 2005 is set aside.
Applicant NBJD is to pay the First Respondent’s costs fixed in the sum of $2,500.00.
The Application is listed for Final Hearing on Tuesday 16 January 2007 at 2:00pm in Court 7B. John Maddison Tower, Level 7, 88 Goulburn Street, Sydney.
The Application must proceed on that day.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3758 of 2004
| NBJC |
First Applicant
| NBJD |
Second Applicant
And
| MINISTER FOR IMMIRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application to set aside orders made on 5th May 2005 dismissing the substantive application by the Applicants. The application was dismissed on that date because neither Applicant attended Court. The Applicants contend that they were not aware that the application had been listed on that date in a non-compliance list. The Applicants were expecting that the application would proceed to a Final Hearing on 22nd August this year.
History
The history of the litigation in this matter illustrates a less than satisfactory degree of diligence by the Applicants in bringing the matter to Court. Ms Sirtes of Counsel, who appears for the First Respondent Minister pointed, out that the proceedings on 1st May 2005 were not the first occasion when the Applicants had not attended the Court. There had been a previous non-attendance at the time when the application was before the Federal Court.
In any event, these proceedings came to this Court by order of
Branson J on 11th November 2004. Her Honour noted that the First Applicant was then a child and she is still a child. She was born on 12th July 1989. The Second Applicant is the First Applicant's mother. Her Honour appointed the Second Applicant as the litigation guardian for the First Applicant. Her Honour made directions to prepare the matter for hearing before this Court including Order 6 which said:
If the matter is transferred to the Federal Magistrates Court and the Applicant does not comply with order 5, the Respondent may request the Registry to list the matter in the non-compliance list before the docket Federal Magistrate with the intention of applying for summary dismissal. The Respondent must give the Applicant 5 days clear notice of the time, date and place of that listing.
The Applicants did file an amended application but it was considerably outside the time set by her Honour. The Respondents arranged to list this matter in a non-compliance list and wrote to the Applicants to advise them of this fact. Counsel for the Respondent Minister has referred the Court to an affidavit of Anthony Carter, solicitor, filed on 15th May 2006. That affidavit points out that on 18th January 2005 a Notice of Change of Address for Service was forwarded to the Respondent's solicitor and that on 18th March the Respondent solicitors wrote to the Applicants advising that if an amended application were not served upon the Respondent by 4:00pm on 1st April 2005, they were to take steps to have this matter listed in a non-compliance list before the docket Federal Magistrate.
The Applicants filed an amended application on 1st April and on
20th April the Respondents wrote to the First Applicant advising as follows:
We confirm receipt of your amended application filed on 1 April 2005. However, we contend the amended application does not comply with the order of the Court above. Accordingly, your matter has been put in a non-compliance list so that the respondent can apply to have your matter summarily dismissed pursuant to Rule.13.03(2)(b) of the Federal Magistrates Court Rules. Furthermore, the respondent will seek an order that you pay the Minister's legal costs.
The respondent's application for summary dismissal will be heard before Federal Magistrate Scarlett at 10:00am on 5 May 2005 at Federal Magistrates Court, Law Courts Building, Queen Square, Sydney. You are required to attend on that day.
If you do not attend on this occasion, the respondent will seek orders from the Court that your matter be dismissed and that you pay the Minister's legal costs.
Neither Applicant appeared on 5th May and the application was dismissed pursuant to Rule.13.03A(c) for failure of the Applicants to attend Court. I made an order that the Applicant NBJD, who is the adult mother of NBJC, pay the Respondent's costs fixed in the sum of $4,000.00.
A copy of a letter dated 10th May 2005 to the First Applicant from the Respondent solicitors is annexed to Mr Carter's affidavit.
The Application to set aside the Orders made on 1 May 2005
On 13th April 2006 the Applicants filed an application to set aside the earlier orders. The document was hand printed and was accompanied by an affidavit. The affidavit purported to be from the First Applicant but was in fact signed by the Second Applicant in the presence of a migration agent, a Mr Ryvchin. Mr Ryvchin witnessed that affidavit in his capacity as a Justice of the Peace. I am informed by the Second Applicant who gave evidence to the Court today that Mr Ryvchin prepared the application and the affidavit. I am somewhat concerned that a migration agent should be preparing Court documents as it does not appear to me to be part of the duties of a migration agent who does not hold a practising certificate as a legal practitioner.
I propose to direct that a copy of this decision be forwarded to the Migration Agents Registration Authority.
I struck out the affidavit on the basis that it was irregular to the extent that it was not sworn or affirmed by the alleged deponent but by another person. Whilst the other person was indeed the deponent's litigation guardian, that does not entitle her to swear or affirm affidavits on her daughter's behalf. It would have been more appropriate for her to have been the deponent to the affidavit itself.
I heard oral evidence from the Second Applicant. Whilst both Applicants attended Court, I did not consider it appropriate to require the First Applicant who is still a child to give evidence in these proceedings. The Second Applicant's evidence set out that, although she was extremely vague about dates, the parties had moved house on more than one occasion. There was some doubt or confusion as to when the Applicants had moved from the address which they had advised the Court by means of a Notice of Address for Service and the address that they had given on the application to set aside the orders.
It appears that they were at one address for a relatively short period of time, a matter of two or three months.
That was a different address from the address at which they were living when they commenced the substantive proceedings. They then moved to a third address, which was the address at which they were living when the application to set aside was commenced. I note that a Notice of Change of address for Service has been filed as recently as September of this year, indicating a further address. I understand from the evidence that is the current address.
The matters have been complicated somewhat due to the fact that the Second Applicant became pregnant and has given birth to another child. It was for that reason in fact that the application to set aside the original judgment which had been scheduled for 2nd August 2006 was adjourned until today.
The Second Applicant told the Court that she was not aware that the application had been dismissed for non-attendance until after she had commenced making inquiries in December 2005 which culminated in the Department of Immigration informing her apparently in April 2006 that the application had been dismissed. The Second Applicant's vagueness as to dates and confusion as to details was considerable and her evidence was imprecise and unfocused. She maintained her contention that notwithstanding the evidence of Mr Carter's affidavit that the parties had not been informed of the proceedings in May 2005 and contended that there had been other confusions in the history of this matter.
There may well have been, but I strongly suspect that those confusions were brought about either by the Second Applicant or by the Second Applicant's migration agent who has not attended Court today and appears on the evidence before me to have been offering advice of sorts on the sidelines. The most charitable interpretation I can place on the migration agent's advice is that it has been misunderstood by the Second Applicant.
Ms Sirtes for the Respondent Minister has pointed out to the Court that the Second Applicant has not demonstrated a convincing reason for setting aside the judgment and has also pointed out that even if I were to set aside the judgment, it would be an act of futility in that the amended application would indicate that the Applicants' case has no reasonable prospects of success. Indeed, it is pointed out that the Second Applicant's case appears to have no prospect of success and that her application for judicial review appears to be invalid. It appears that s.48A of the Migration Act applies to the Second Applicant who has previously applied for a protection visa. Even if that were not a bar, clause 1.12(1) of the Migration Regulations would contain a bar, and the Second Applicant does not fulfil the criteria in respect of her claimed status as a member of the First Applicant's family group.
Conclusion
The matter before me is a matter for the exercise of the Court's discretion. In view of the unsatisfactory evidence of the Second Applicant, there are many reasons why I would be reluctant to exercise my discretion in favour of the Applicants. Against this the proceedings have not been heard on their merits in respect of the substantive application. The procedure involving mandatory filing of an amended application and matters being placed into a non-compliance list, that application was not filed, is not a procedure which I now follow. In my view, it is less than appropriate when one is dealing with unrepresented applicants whose first language is not English.
It does not appear to me to comply with the objects of the Federal Magistrates Act 1999 as set out in s.3(2) of the Act. That sub-section says:
The other objects of this Act are
(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power, and
(b) to enable the Federal Magistrates Court to use streamlined procedures and
(c) to encourage the use of a range of appropriate dispute resolution processes.
The object in sub-s.3(2)(c) is clearly not relevant, but I am not of the belief that a practice that requires lengthy directions for hearing, mandatory filing of Court documents and non-compliance lists necessarily meets the objects of the Federal Magistrates Act. In my view, bearing in mind that most applicants for review of decisions of the Refugee Review Tribunal are not legally represented, the objects of the Act are best met by simple directions hearing and a system of case management that enables an application to be heard on its merits such as they are at the earliest possible opportunity.
It is fair to say that the merits in the substantive application before me are not great. The case of the First Applicant NBJC, the daughter, could at best be described as a weak case. The case of the Second Applicant could not be described as highly as that. I am mindful of the decision of Kirby J in Lindon v Commonwealth of Australia(No.2) (1996) 136 ALR 251 where his Honour said that it was a serious matter to deprive a person of access to the Courts of Law for it is there that the rule of law is upheld.
An opinion of the Court that the case appears weak and such that it is unlikely to succeed is not alone sufficient to warrant summary termination. Even a weak case is entitled to the time of the Court. (page 256)
In my view, the Second Applicant has managed this case, which is largely her daughter's case, with an astonishing degree of ineptitude. However, the factor that induces me to exercise my discretion in favour of setting aside the order is the fact that the First Applicant is a child. She is not now an adult and she will not be an adult at the time this application is heard on a final basis on its merits. If the First Applicant were not a child or if this case involved only the Second Applicant, I would see no reason whatsoever for exercising my discretion in favour of setting aside the orders made on 1st May 2005.
The Second Applicant has told the Court that it is her intention to obtain legal representation. In my view, that would be essential.
Legal representation does not mean going to a migration agent, certainly not one whose participation in these proceedings, from the evidence available to me, has not shown his competence in a very favourable light. However, I am of the belief that the First Applicant deserves to have her case heard on its merits, such as they are. I am still of the belief that it is not a strong case, but I will find a time soon to hear it.
The Applicants will need to be aware that the matter will be listed for Final Hearing, and it must proceed on that day. I will not accept any excuses that they were not aware of the time, date and place of hearing, because I will make it quite clear as to when and where the Applicants are required to attend. The “where” is very simple. It will be right here in this Court, Court 7B, level 7, John Madison Tower, 88 Goulburn Street, Sydney. The application will be in front of me, and I will hear the case on that day, and I will hear it to finality.
As far as exercise of my discretion is concerned, in my view, the Applicant NBJD should pay the First Respondent’s costs of today, and I will hear submissions on the amount of costs in a minute.
The application will be listed for Final Hearing at 2:00pm on Tuesday, 16th January 2007 in Court 7B, Level 7, John Madison Tower, 88 Goulburn Street, Sydney.
The application must proceed. The Applicants are advised if they do not attend on that occasion, orders may be made in their absence.
I will require an interpreter in the Russian language. I do consider it appropriate, for the benefit of the First Applicant, who is a child – it would be better if she were legally represented, but that is not a matter that I can control.
I will order a transcript of my reasons for this decision, and the matter will proceed on Tuesday 16th January 2007 at 2:00 pm.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 30 November 2006
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