NBLY and Minister For Immigration and Anor (No.2)
[2006] FMCA 749
•28 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBLY & MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 749 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – application to set aside pursuant to r.16.05 of the Federal magistrates Court Rules 2001 – applicant failed to appear at earlier hearing – applicant asserted confusion of hearing date – application dismissed. |
| NBLY v Minister for Immigration & Anor [2006] FMCA 583 |
| Applicant: | NBLY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3021 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 April 2006 |
| Date of last submission: | 28 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2006 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Respondent: | Mr A. Cox, Phillips Fox Lawyers |
ORDERS
The application that the order dismissing the application on 30 March 2006 is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3021 OF 2005
| NBLY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 31 March 2006, the applicant filed an application in this Court, pursuant to r. 16.05 of the Federal Magistrates Court Rules 2001 to set aside an order made on 30 March 2006, pursuant to r. 13.03A(c) of the Federal Magistrates Court Rules 2001 dismissing her application for review of the Tribunal decision dated 29 June 2006 be set aside.
The applicant relies on an affidavit filed on 31 March 2006 and that affidavit is in the following terms:
“DIMA did not notify me the decision to refuse my application for a protection visa. From the record, you could see that the decision letter was unreceived. I therefore filed and Notice of Appeal to Federal Magistrates Court. I was given a hearing date of 30/03/2006. I remembered it to be a Friday, so I turned up at the court on 31/03/2006, I ended up missed [sic] the hearing on 30/03/2006. The court staff saw me at the court on 31/03/2006, and gave me some information asking me to file this application. I sincerely hope that I can be given an opportunity to attend the court for my application for review at Federal Magistrates Court RRT refused to accept my application. As a matter of fact, DIMA did not send me the decision letter. DIMA should send a decision letter again so that I can lodge my application to be reviewed at RRT. It was jurisdictional error that DIMA failed to notify me the decision of my application.”
I also refer to the ex tempore decision given by me on the 30 March 2006 and the reasons for judgment forms part of my reasons this morning, and are set out as follows:
“1. It is now 10.42am and the applicant has not appeared, having been called outside on at least three occasions.
2. The first respondent seeks an order pursuant to r. 13.03A(c) of the Federal Magistrates Court Rules 2001 dismissing the applicant's application by virtue of her non-appearance.
3. It is relevant to recite a brief history of this matter. On 6 July 2005 the applicant filed an application in the Federal Magistrates Court of Australia seeking review of a decision of the Refugee Review Tribunal of which the applicant was notified on 30 June 2005. The Tribunal had determined that it did not have jurisdiction to review the decision of the delegate refusing a protection visa because the application to the Tribunal by the applicant was filed outside the mandatory time limits provided for under the Migration Act 1958 (Cth).
4. On 3 August 2005, directions were made by the Registrar of this Court, inter alia, directing the applicant to file and serve an amended application and setting the matter down for hearing today at 10.15am. The applicant was present at the directions hearing and signed the short minutes of order. The applicant then filed an amended application on 24 October 2005 in which she identified her address for service as 24 Jones Street, Pendle Hill NSW 2145. That is indeed the same address that was on the applicant's original application filed on 6 July 2005.
5. The first respondent has tendered this morning a letter that it had couriered to the applicant together with a copy of the courier operations sheet, those documents together will be exhibit 1R, which discloses that on 28 March 2006 the first respondent sent to the applicant at her address at 24 Jones Street, Pendle Hill, a copy of the first respondent's submissions and list of authorities. The courier operations sheet discloses that the job number 12697 was for delivery of the document to 24 Jones Street, Pendle Hill. In handwriting on that document with an arrow at the address are the words "Building Block".
6. The first respondent also tendered a file note of Emily Ramos dated 29 March 2006, which I mark exhibit 2R, which discloses, inter alia, that the courier had noted that the applicant's address is a “Building Block”.
7. In any event, I am satisfied that the documents were sent to the applicant's identified address for service. Moreover, the applicant was present in Court when the matter was set down for hearing today.
8. In the circumstances, there has been no communication from the applicant with the first respondent's solicitor nor the Court in respect of any reason why the applicant would not be present in Court today. In the circumstances, I am satisfied that it is appropriate to proceed in the absence of the applicant.
9. I have had regard to the first respondent's outline of submissions. At the heart of the submissions is a contention that there was no discretion in the Tribunal to extend time in circumstances where it was satisfied, as it found it was, that the statutory regime of notification was complied with. Whilst I have not had comprehensive submissions on that matter nor satisfied myself of the statutory regime, there is nothing before me to suggest that the first respondent’s contention is incorrect. In the circumstances, I am satisfied that the order sought by the first respondent this morning is appropriate. Accordingly, I order that the applicant’s application in this Court is dismissed pursuant to
r. 13.03A(c) of the Federal Magistrates Court Rules 2001.
10. The first respondent seeks costs fixed in the sum of $3000. Whilst this would not be a complex matter, I note that the first respondent has prepared an outline of submissions in accordance with the directions made on 3 August 2005 and that the amount sought is otherwise less than that provided for in the schedule of costs annexed to the Federal Magistrates Court Rules 2001.
11. In the circumstances, I am satisfied that the costs sought are reasonable.” (NBLY v Minister for Immigration & Anor [2006] FMCA 583)
The applicant gave evidence this morning essentially seeking to explain her failure to appear on the basis that when she appeared in Court on the 3 August 2005 and the matter was set down for hearing on 30 March 2006 she mistakenly understood the date to be the 31 March 2006.
During the course of cross-examination the applicant conceded that in fact she was handed a piece of paper at the Court appearance on
3 August 2005 that had the correct hearing date. Further, I note that the applicant received a letter, marked Exhibit 1R, from the solicitors for the respondent confirming the hearing date on the 30 March 2006.
The applicant was asked many times by Mr Cox on behalf of the Minister, to agree that she could have looked at the piece of paper which would have told her the correct time and date of the hearing. As with many of the applicant's responses in cross-examination this morning, she was so evasive as to appear deliberately so. I found her evidence generally to be wholly unreliable and I place no weight upon anything that she has said in Court this morning.
In order for the applicant to succeed in her application this morning, it is necessary for her at least to satisfy the Court that there was a reasonable explanation for her failure to appear at the hearing before this Court on 30 March 2006. It is also relevant for the Court to have regard to the prospects of success of her application for judicial review of the Tribunal's decision. That consideration is a matter that was explained to the applicant this morning. The applicant, despite maintaining that it was her understanding the hearing was on the
31 March 2006, has filed no document in this Court or submissions in support of her amended application despite having been directed so to do on the 3 August 2005, there being a directions hearing at which she was present and orders were made by consent and signed by her.
In the ex tempore decision given by me on 30 March 2006 I refer to the first respondent's outline of submissions prepared for the hearing of the substantive matter on that day.
Certainly the amended application, on the face of it, contains no particulars and discloses no error capable of judicial review. Further, the issue raised by the first respondent in the outline of submissions and which is addressed in my ex tempore judgment of 30 March 2006, would lead me to conclude that the applicant's application has no real prospect of success.
In any event, I am wholly unsatisfied by the explanation provided by the applicant this morning for her failure to appear at the hearing on
30 March 2006. In the circumstances her application for the order dismissing her application on 30 March 2006 to be set aside is dismissed.
RECORDED : NOT TRANSCRIBED
The respondent seeks costs fixed in an amount of $250 for the hearing time occupied by this morning's application. The part of the reason that the application for costs is not greater is that the respondent was not served with a copy of the application and the applicant's affidavit and therefore no preparation costs have been incurred. In the circumstances, I am satisfied that $250 sought is reasonable and I order that the applicant pay the respondent's costs in the amount of $250.
RECORDED : NOT TRANSCRIBED
I ought perhaps make it clear that in respect of the reasons that I have given this morning for dismissing the applicant’s application and in placing no weight on her, I am not persuaded that the address at
24 Jones Street, Pendle Hill is other than a building block. Again, I refer to my ex tempore judgment given on 30 March 2006 (reproduced in these Reasons at para. 3 above)..
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: A. D’Addona
Date: 24 May 2006
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