S329 of 2003 v Minister for Immigration and Anor (No.2)

[2006] FMCA 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S329 of 2003 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2006] FMCA 303

MIGRATION – Application to set aside order for dismissal of review application – no explanation for failing to appear – no merits in substantive application – extensive delays – application to set aside dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001, r.16.05(2)

Applicant S329/2003 v Minister for Immigration & Anor [2006] FMCA 112
Knight [2004] FMCAfam 181

Applicant: APPLICANT S329 of 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 3075 of 2005

Delivered on: 1 March 2006

Delivered at: Sydney

Hearing date: 1 March 2006

Judgment of: Baumann FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms Warner-Knight

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay a contribution to the Respondents’ costs in the sum of $650.00 within 30 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3075 of 2005

APPLICANT S329 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from the ex tempore Reasons)

1. The application before me today is a Notice of Motion filed by the Applicant on the 27^th January 2006 supported by an affidavit sworn the 25^th January 2006 in which the Applicant seeks orders that:

   i)The decision of his Honour Scarlett FM on 23 January 2006 is set aside.

   ii)The appellant be allowed to argue his case in full.

2. The decision of Scarlett FM on the 23^rd January 2006 (see Applicant S329/2003 v Minister for Immigration & Anor [2006] FMCA 112) was to dismiss the application pursuant to Rule 13.03A (c) of the Federal Magistrates Court Rules 2001 which provides that:

   “If a party to a proceeding is absent from a hearing (other than the first court date), the Court may do any of the following:

   (a) adjourn the hearing to a specific date or generally;

   (b) order that there is not to be any hearing unless:

   (i) the proceeding is again set down for hearing; or

   (ii) any other steps that the Court directs are taken;

   (c) if the party absent is an applicant or a respondent who has made a cross claim - dismiss the application or the cross claim.”

3. I contend that the Notice of Motion should be construed as an application made under Rule 16.05 of the Federal Magistrates Court Rules 2001 which provides under sub-rule (2) that:

   “The Court may vary or set aside its judgment or order after it has been entered if:

   (a)the order is made in the absence of a party; or

   (b)the order is obtained by fraud; or

   (c)the order is interlocutory; or

   (d)the order is an injunction or for the appointment of a receiver; or

   (e)the order does not reflect the intention of the Court; or

   (f)the party in whose favour the order is made consents.”

4. It is clear that both, as a matter of common law and on the basis of this Court's own rules, where an order is made in the absence of a party the Court may consider setting aside that order.  It is a matter which is a discretionary exercise of power. (see Knight (2004) FMCAfam 181)

5. In exercising that discretion, the Court should consider at least:

   a)The reasons for the failure to appear and

   b)The prospects of success of the substantive application and

   c)Whether any prejudice to the respondent is likely to occur.

6. For the sake of completeness and because the issues are so important to this Applicant I deal with each of those matters now. 

Reasons for failing to appear

1. The Applicant relies upon an affidavit in English sworn the

   
   

   25^th January 2006. It is not clear to me who assisted the Applicant in preparing this affidavit in circumstances where today, for example, the Applicant has required the use of a Court appointed interpreter.  Nonetheless, the important parts of that affidavit were put to him in his own language today. I also required the Applicant to give further evidence because of what was a contradiction in paragraphs four and seven of that affidavit.  Relevantly, paragraphs four and seven provide as follows:

   “(4)  However my health was not good on that day.  I was so sick that I was not able to talk and move due to pain.  There were pain all over my body.  I had to see a doctor instead of coming to the hearing.  Medical evidence attached.

   (7)  I am very poor and do not have a Medicare. I could not afford to go to a doctor therefore I am not able to provide any medical documents.”

2. I contemplated adjourning this hearing, which was not opposed by the solicitor appearing on behalf of the Respondent, until 2:15 this afternoon to allow the Applicant to go to his home and collect documents which he said, from the bar table, were available.  Because I found his answers from the bar table (through the interpreter), as somewhat ambivalent, I directed that he be placed in the witness box and give evidence under his affirmation as to what documents he had in his possession at his home. The transcript will reveal that when confronted with the direct question as to whether he had any documents, he says he does not.

3. It follows, that being the case, that it is hard to see how it could be truthful when he says at paragraph four:

   “I had to see a doctor instead of coming to the hearing.”

4. On that basis alone it would seem to me open to the Court to dismiss his application because he has failed to prove an adequate explanation for his failure to attend at the Court on the 23^rd January 2006. 

Prospects of success of this application

1. For the sake of completeness I have considered, in any event, the application which he filed in this Court on the 24^th October 2005.  What must be immediately noted is that this application was filed many years after the decision of the Refugee Review Tribunal was made on

   
   

   23^rd July 1998.  It is clearly more than seven years late. Even if the Applicant were able to get over that hurdle - and I note that he has not provided any evidence to explain that delay - I have formed the view that the substantive application has no merit in any event. 

2. In a sense, Scarlett FM seems to have formed the same view when he says at paragraph six:

   “I note too that the Tribunal decision dealt very much on the question of the Applicant's credibility and indeed the Tribunal was not satisfied that the Applicant was a credible witness.  The Tribunal even took the view that the Applicant had fabricated his story.”

3. I would not regard that statement as necessarily binding me today if I were to hear the substantive application. The difficulty, however, is that the Applicant has failed to put before the Court any written submissions in support of the five grounds he alleged for his application.  The application, interestingly, states as ground six that:

   “I will provide more details later.”

4. None have been forthcoming. The transcript will reflect that I also gave him a further opportunity today to make submissions so as to, as he sought:

   “Be allowed to argue his case in full.”

5. He says he had nothing further to say, add or produce. 

6. The submissions made by the Respondent and dated the 18^th January 2006, deal with each of the grounds raised by the Applicant. Although I do not have before me a transcript of the proceedings before the RRT, it is clear to me that the ultimate finding made and set out at page 101 of the Court Book was open to the Tribunal.  That conclusion was recorded in these terms:

   “The Applicant was nervous, evasive, hesitant, slow to answer and avoided answering questions at hearing.  From the answers given by him, and detailed above, I am satisfied that he has fabricated his story of being a Bihari and a non-citizen of Bangladesh.  I do not believe any part of what he has claimed in his written submissions nor what he has said at the hearing.  I find that the Applicant was not a member of the MQM, that he is not a Bihari, and that he has not encountered any problems in Bangladesh.  I consider that he is a Bengali and a Bangladeshi citizen, as stated by him in his original application to the Department. His being a citizen is confirmed by his possession of a Bangladeshi passport.

   I find that the Applicant does not have a well-founded fear of persecution for reasons of a Convention ground.”

7. It is not necessary for me to go through the foundation for that conclusion as it is apparent from the reasons of the learned Member, particularly at the paragraphs beginning at page 97 of the Court Book. 

8. As I say; it seems clear to me that the submissions made by the Respondent in this case are supported by the evidence and I would adopt them. 

9. Suffice it to say that if both of the other issues relating to my discretion were satisfied, I would not have found that the Minister was so prejudiced as to not allow full hearing of the matter to proceed in this case.

10. In my view there is no basis upon which I could reasonably exercise the discretion given to me under Rule 16.05 and even if I were found to have erred in that regard, I would have found against the Applicant in respect of the substantive application.

11. For these reasons I am left with no other alternative but to dismiss the application to set aside. I intend to so order, with costs. 

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

Associate:  Virginia Lee

Date:  3 March 2006