SZAAD v Minister for Immigration
[2006] FMCA 1337
•7 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAAD v MINISTER FOR IMMIGRATION | [2006] FMCA 1337 |
| MIGRATION – Application to set aside orders made in the absence of the applicant – whether to do so would be futile where court has no jurisdiction. |
| Migration Act 1958 (Cth), ss.411, 476 Federal Magistrates Court Rules 2001, r.16.05 |
| Applicant: | SZAAD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File number: | SYG3597 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3597 of 2005
| SZAAD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The matter is before the court by way of an application filed by the applicant on 31 July 2006 seeking that orders made by this court on
5 June 2006 be vacated and the matter reinstated for further hearing. The applicant relies on the application and an affidavit sworn and filed by him on 31 July 2006.
The background to these proceedings is that on 7 December 2005 the applicant commenced proceedings in this court seeking review of a decision of a delegate of the respondent not to grant the applicant a protection visa. It is worth noting that those proceeding concern only the delegate’s decision, although in fact the applicant applied for and had a review by the Refugee Review Tribunal. The Tribunal affirmed the decision of the delegate and the applicant sought review of the Tribunal decision in proceedings in this court in 2002 which were dismissed by consent in 2003. In 2005 he sought leave to appeal and an extension of time in the Federal Court. That application was dismissed and application for special leave to appeal was dismissed subsequently by the High Court in October 2005.
The application for review of the decision of the delegate came before a registrar of this court on 24 January 2006. On that date the matter was listed for final hearing on 11 October 2007. However the solicitors for the respondent sought a listing of the matter for an application for summary dismissal and also opposing the application on the basis that the court had no jurisdiction in relation to a primary decision. The date of 5 June 2006 at 2:15pm was allocated for the hearing of the Minister’s application.
The Minister relies in these proceedings on affidavits sworn by David Anthony Simm on 20 December 2005 and 8 August 2006. Annexed to the latter of those affidavits are copies of two letters sent to the applicant at his postal address for service notifying him of the Minister’s application for dismissal and that it had been listed before this court at 2:15pm on 5 June 2006 and also notifying him that if he did not attend on 5 June 2006 at 2:15pm the Minister would seek to have the matter dismissed with an order that the applicant pay her costs. Those letters are dated 22 February 2006 and 22 May 2006
There was no appearance by the applicant on 5 June 2006 and his application was dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 and he was ordered to pay the respondent’s costs. He now comes before the court by way of application which I take to be pursuant to Rule 16.05 of the Federal Magistrates Court Rules seeking that the order be set aside as having been made in his absence.
In such circumstances it is necessary for the court to have regard to whether an adequate explanation has been provided for the applicant’s failure to appear and also whether the applicant has an arguable case or whether it would be futile to reinstate his application. In his affidavit of 31 July 2006 the applicant deposed that he was not able to appear before the court on 5 June 2005 (which I take that to be intended to be a reference to 2006) because:
“I was not informed of the hearing date.”
However in cross-examination the applicant gave contradictory evidence agreeing not only that letters were addressed to his address for service but also that he was aware that he had to come to the court on 5 June 2006. He provided a number of different explanations for why he had not done so, the fact that he received many letters from the solicitors for the respondent, that he had a letter from the court saying he had a hearing in 2007 and in re‑examination suggesting for the first time that he had been sick. He also told the court that he was aware of the hearing but did not have any money to come to the hearing.
In these circumstances where the applicant was aware of the hearing and where there was no application to the court for an adjournment, I do not consider that the applicant has provided an acceptable explanation for his failure to attend the court on 5 June 2006. In any event, even if that were not the case, it would be futile to reinstate his application for review of the decision of the delegate of the respondent. Without needing to venture into a consideration of whether the application is abuse of process, the reason it would be futile to reinstate the proceeding is that the application is incompetent.
The applicant seeks to review the decision of the delegate. Such decision is a decision which is reviewable by the Refugee Review Tribunal under Part 7 of the Migration Act 1958 (see section 411(c)). Accordingly it is a primary decision within the meaning of s.476(4). Section 476(2) provides that this court has no jurisdiction in relation to a primary decision. In these circumstances the applicant cannot succeed in his application for review of the delegate’s decision in this court and it would be futile to reinstate his application. Hence the application of 31 July 2006 should be dismissed.
The applicant has been unsuccessful. There is nothing in the material before the court to warrant departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The applicant states that he has not the money to meet costs. That is not a reason for not awarding the costs, although it may be a matter taken into account by the respondent in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 12 September 2006
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