SZBOI v Minister for Immigration
[2006] FMCA 651
•10 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBOI v MINISTER FOR IMMIGRATION | [2006] FMCA 651 |
| MIGRATION − Where after proceedings discontinued by consent order applicant applied to re-open case − where applicant misunderstood solicitor’s advice at time of discontinuance − whether applicant should be granted leave to re-open case one and three quarter years after it was dismissed − whether genuine reason for applying to re-open case − whether reasonable prospects of success. COSTS − Where respondent fails to remove the applicant within a reasonable time after consent orders filed terminating proceedings. |
| Migration Act 1958, s.91S |
| Applicant: | SZBOI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File number: | SYG2052 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 10 April 2006 |
| Date of last submission: | 10 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2052 of 2003
| SZBOI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application requesting the court to reinstate an application for review of a decision of the Refugee Tribunal which was made on 12 June 2002 and handed down on 2 July 2002.
The original application was filed with this court on 2 October 2003. On 30 June 2004 the applicant's solicitor wrote to the respondent's solicitor indicating that his client no longer wished to proceed with the matter and sought to discontinue the proceedings by consent. That course was agreed to by the Minister's solicitor and consent orders were signed by solicitors for both parties and filed with the court on 20 July 2004. The next day orders were made by myself in accordance with those consent orders.
On 16 September 2004 the applicant's solicitor submitted a s.417 application to the Minister. I do not know when, but I am assured by both the Minister's solicitor and by the applicant that the application was unsuccessful. I assume a substantial period had elapsed between the notification of the lack of success of the application under s.417 and
20 February 2006, during which time the Department could have removed the applicant from Australia. It does not appear to have done so.On 20 February 2006 the applicant filed this application. In short, he accused his solicitor of acting without his authority and indicated that he had always wished to proceed with this matter through the courts. He had not given his solicitor authority to send a letter under s.417.
Ms Palmer, who appears on behalf of the respondent, filed an affidavit on 7 April 2006 in which she recounts a conversation between her and the solicitor who had acted for the applicant and a document found as annexure E to the affidavit, being an authority to withdraw the proceedings signed by the applicant upon which the solicitor acted. In the witness-box today the applicant agreed that he had signed the authority and he had in fact instructed his solicitor to withdraw the proceedings. He thought that he was withdrawing the proceedings so that some different proceedings could be commenced (he mentioned the High Court) which would be "stronger". The applicant told how he was charged for the advice received from the solicitor including an advice from a barrister who he said he had never met and whose advice he had never seen.
In order to allow the reopening of a case some one and three-quarter years after it was dismissed by consent I would have to be satisfied that there was a genuine reason for the application and that if the case was to be reopened the applicant stood at least a reasonable prospect of success. When I talk about a genuine reason I mean, for example, some disability that the applicant might have suffered at the time so that he did not understand what was going on or some fraud on the part of his adviser. It is not good enough that the adviser merely gave what the applicant now considers to be bad advice.
The evidence does not reveal any of this. It is possible that the applicant did not quite understand what was going on but it is also possible that the solicitor explained to him that his legal case was weak whereas his case for a humanitarian intervention by the Minister may well be stronger. A reading of the papers would indicate that if that advice was given it was probably the best advice the applicant could have received.
I have considered the decision of the Tribunal. The Tribunal concluded that the fear that the applicant claimed to hold was not a fear of Convention persecution and might, in any event, be excluded by the provisions of s.91S of the Migration Act 1958. The Tribunal also took into account whether or not the applicant would receive adequate state protection for what appears to have been an allegation of revenge killing. The Tribunal considered the nature of the anxiety that the applicant says that he felt but did not consider that this was of a severity that amounted to a persecution.
If I was to decide the case on the basis of the papers before me I would not find it difficult to hold that the Tribunal did not fall into jurisdictional error in the manner in which it came to its decision. As I explained to the applicant it is not my job to rehear his application for protection but merely to ascertain whether or not the Tribunal has completed the task which it was mandated to do without falling into jurisdictional error. Nothing I have heard from the applicant would indicate that I would be met with any argument that might allow me to say that there was a reasonable prospect of success.
I am also mindful of the very long period of time that it has taken the applicant to make this application which appears to have been instigated after a member of his community had appeared in this court in relation to another matter. I will therefore decline to grant the applicant leave to reopen the proceedings or to set aside the consent orders which were made.
Normally costs would follow the event. However, it is possible that these proceedings need never have been brought if the Department had moved reasonably speedily to remove the applicant from the country. I have asked the respondent's solicitor to find out what the situation was with regard to removal. If I am provided with some reasonable explanation of why this did not occur reasonably quickly after the s.417 application was responded to I may make an order in the Minister's favour but if I do not receive such explanation I could not propose to do so.
I give the respondent leave to file with the court an affidavit dealing with this matter and for her to serve a copy upon the applicant within 14 days.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
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