SZAWN v Minister for Immigration - [2004] FMCA 394

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAWN v MINISTER FOR IMMIGRATION

[2004] FMCA 394

MIGRATION – Visa – protection visa – Refugee Review Tribunal – review of Refugee Review Tribunal decision – application for a protection visa – applicant from the Philippines – where applicant did not attend the Refugee Review Tribunal hearing – where applicant did not attend court.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 474

Applicant:

SZAWN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1192 of 2003

Delivered on:

25 May 2004

Delivered at:

Parramatta

Hearing date:

25 May 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

No Appearance by or on behalf of the Applicant

Counsel for the Respondent:

Mr Bromwich

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs of these proceedings in the sum of $4,750.00.
The Applicant’s solicitor is to show cause why the order for costs should be made against him personally by filing and serving an affidavit by 4:00pm on 15 June 2004.
Liberty to apply on seven (7) days’ notice.
Transcript of reasons for decision required.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1192 of 2003

SZAWN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before me is an application for review of a decision of the Refugee Review Tribunal which was made on 4 August 1997. That decision affirmed a decision of the delegate of the respondent Minister to refuse a protection visa to the applicant. The applicant arrived in Australia on 17 June 1990. He is a citizen of the Philippines. He applied for a protection visa on 4 September 1995. In that application he gave as his reasons for fear of persecution his membership of a particular group, the NDF, and his political opinion. He said that he joined the NDF just before the Marcos government was trampled and after President Marcos left his group maintained its course of reforms and became more active. He was the secretary and public relations officer of the group and was well known by the authorities. He said that he had liaison to all government departments and attended all meetings of the group.
When the government started presumably cracking down on members of the NDF he left in a hurry. First he went to the Middle East then he went to Singapore. He said that he had received news whilst he was overseas that most of his colleagues had disappeared and that some were still in jail. That is at September 1995. He indicated that due to his high profile in the organisation he was sure that his name was still on top of the list of wanted persons.
That application was considered by a delegate of the respondent but was unsuccessful. On 31 October 1995 a delegate of the respondent wrote to the applicant informing him that his application for a grant of a protection visa was refused and he was granted a bridging visa to allow him to remain in Australia for a period of 28 days until he was required to leave. The reasons that were given were that the applicant was certainly accepted as a citizen of the Philippines and it was certainly accepted that the applicant held a high profile position within the NDF and he was an active member.
At the same time the delegate did not accept his claim that he would face a real chance of persecution because of his role with the NDF. There was no evidence to suggest that the arrest of his colleagues was for NDF activities and the applicant had not provided any information to link him with their arrests other than membership of that party. The delegate found that the applicant was not a person to whom Australia has a protection obligation under the Refugee Convention as there was not a real chance of convention based persecution if he were to return to the Philippines and consequently his fear of persecution on return was not well founded.
The applicant sought a review of this decision by the Refugee Review Tribunal and indeed was invited to a hearing to be held on Thursday

7 August 1997. The applicant through his then solicitors Davidson James & Associates wrote a letter dated 11 July 1997 to the Refugee Review Tribunal indicating an intention by the applicant not to attend a hearing and in the document entitled request for hearing expressed the view:
I do not think it is necessary for the Tribunal to hold a hearing.
Consequently, the hearing was cancelled. On 4 August 1997 the Refugee Review Tribunal affirmed the decision not to grant to the applicant a protection visa. The Tribunal noted that the applicant had not availed himself of an opportunity to amplify his claims and the reasons for his expressed fear. The Tribunal was not satisfied that the applicant had a high profile with the NDF, noting that he was able to depart the Philippines on his own passport and took the view that the authorities therefore had no interest in the applicant. The Tribunal noted that the NDF had been engaged in a series of negotiations with the government in an endeavour to bring about a political solution and a peaceful end to a long running guerilla campaign and that those talks had continued to move in a positive direction.
In particular the NDF had continued to operate as a legitimate political entity since the departure of the applicant from the Philippines. The Tribunal noted that the applicant's own profile had caused him no serious harm in the past and there was no independent evidence to indicate that he would face any prospect of such an outcome in the foreseeable future. The Tribunal found that the applicant did not have a well founded fear of persecution for a convention reason. The applicant commenced court proceedings and made an application under the Judiciary Act. This application was filed on 27 June 2003.
On 27 August 2003 a notice of appearance was filed by Mr Edmond Teng, solicitor, on behalf of the applicant. When the matter came before the court, Mr Teng appeared for the applicant and a solicitor from Clayton Utz, the solicitors for the respondent in these proceedings, appeared for the respondent. The matter was listed for hearing before me today. The applicant has not appeared. The applicant has not filed any written submission. The respondent has prepared a written document outlining the respondent's submissions and forwarded a copy of that to the solicitor on the record, Mr Teng, under cover of a letter dated 21 May 2004.
The outline of submissions prepared by Mr Bromwich of counsel, sets out in its heading, the hearing date and I quote:
For hearing on 25th May, 2004.
The applicant has not appeared today. His solicitor did not appear and I stood the matter down and indicated that I would recall the matter at 10.45. I also asked counsel for the respondent to arrange for his instructor to ring the solicitors on the record to inquire as to why there had been no appearance either by the applicant or by someone on the applicant's behalf. I was informed that someone from Mr Teng's office was coming up and indeed at 10 past 11, Mr Timothy Teng, who is not himself a solicitor, but an accountant by profession, arrived on behalf of Mr Edmond Teng, who is the solicitor on the record.
Mr Edmond Teng is not available today. In the circumstances, I granted Mr Timothy Teng, leave to appear and Mr Teng informed me that to his knowledge inquiries had been made as to the whereabouts of the applicant and it was his belief, although he was not 100 percent sure, that the applicant has already left the country. I accept those assurances from Mr Teng and I make no criticism whatsoever of Mr Timothy Teng in his efforts to assist the court in these proceedings. Quite the reverse, in fact. What is a matter of some concern is that there were solicitors who had filed a notice of appearance and in such a case, the court is entitled to expect that a solicitor on the record has and continues to hold instructions to appear for a party and that all communications should be directed through the office of that solicitor.
Indeed the respondent's solicitors, on 21 May, had forwarded a copy of the respondent's written submission to the applicant care of the solicitors' office as they were entitled to do. No notice has been received by the court until today that Mr Edmund Teng's instructions have been withdrawn or that he was not in receipt of any further instructions. It certainly happens that parties will instruct a solicitor to appear for them in proceedings, and then for whatever reason, elect not to go ahead with these proceedings. In such a case, if a solicitor finds that he or she is left without instructions, the solicitor has a duty to the court to inform the court in writing and to inform the other party or parties on the record.
It is regrettable that this requirement seems to have been overlooked. The Federal Magistrates Court takes a series view of the responsibilities of solicitors in their obligations as officers of the court. In proceedings in some jurisdictions in which the Federal Magistrates' Court sits, it is a regular procedure for a solicitor to file a notice of ceasing to act after having given an applicant sufficient notice. I do not propose to require every solicitor who finds himself or herself without instructions to go so far as that in proceedings in this jurisdiction but I am strongly of the view that a solicitor should inform the other party or the other parties and should inform the court, even if it is by such an informal means as a faxed message or a telephone call to the registry.
In those circumstances where a solicitor is left unfortunately without instructions, the court would certainly take a sympathetic view as far as the solicitor's obligation to play any further role in these proceedings. It is regrettable that this obligation does not seem to have been complied with. As far as the progress of the hearing is concerned, Mr Bromwich of counsel for the respondent, submits that the application should be dismissed. In my view this is appropriate, that the applicant has not appeared and has not given any instructions to the solicitors on the record to enable them to provide any constructive part in the proceedings other than through the good offices of Mr Timothy Teng, advising the court of his belief that the applicant has already left Australia.
I am of the view that I can deal with this matter under rule 13.03A and I propose to dismiss the application. An order for costs is sought by the respondent and costs usually follow the event. In this case, it seems to me appropriate, that the respondent should be entitled to a costs order and in default of appearance by the applicant who, I note, did not appear before the Refugee Review Tribunal, I can see no reason why I should not make an order for costs.
I will be ordering, therefore, that the application is dismissed and that the applicant is to pay the respondent's costs of these proceedings. In my view it is preferable for costs to be assessed in a fixed sum by the court rather than going through a procedure for taxation or other assessment and if Mr Bromwich you have some figure at this stage that you would wish to submit for my attention, I'll certainly consider it.
The final matter that Mr Bromwich refers to my attention is whether I should order costs against Mr Teng personally in the circumstances. I'm not of the view that Mr Timothy Teng is in a position to argue that.
Thee orders that I make are set out at the beginning of this judgment.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 23 June 2004