SZBXA v Minister for Immigration
[2007] FMCA 119
•1 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBXA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 119 |
| MIGRATION – Application to set aside orders made in absence of applicant. |
| Migration Act 1958 (Cth) Federal Magistrates Court Rules, r.13.03 |
| Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor (1997) 76 FCR 301 Taylor v Taylor (1979) 143 CLR 1 Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448 |
| Applicant: | SZBXA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG447 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 1 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2007 |
REPRESENTATION
| Applicant: | In person (via telephone) |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application of 2 February 2007 is dismissed.
The applicant shall pay the first respondent’s costs fixed in the sum of $300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG447 of 2006
| SZBXA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter comes before the Court by way of an application by the applicant to set aside orders made by this Court on 19 December 2006 dismissing an application for non-appearance. The background to this application needs further explanation before I consider the basis for the present application.
Relevantly, on 9 November 1999 a delegate of the first respondent refused to grant the applicant a protection visa. The applicant sought review by the Refugee Review Tribunal (the Tribunal) and in February 2002 the Tribunal affirmed the decision of the delegate.
The applicant filed an application for judicial review in the Federal Court. That application was dismissed and the applicant appealed to the Full Court of the Federal Court. He sought an adjournment of a scheduled hearing. The application for an adjournment was dismissed as was the application for leave to appeal and the appeal. He made an application for special leave to appeal to the High Court that was discontinued in November 2003.
The applicant commenced fresh proceedings in the Federal Magistrates Court to review the Tribunal decision of 5 February 2002 that were dismissed on 1 March 2004 as an abuse of process and vexatious.
He was granted leave to appeal to the Full Court of the Federal Court but the appeal was dismissed with costs on an indemnity basis. He sought special leave to appeal to the High Court. Gummow and Kirby JJ dismissed the application for special leave to appeal.
On 21 September 2005 the applicant lodged a second application with the Tribunal for review of the delegate’s decision of 9 November 1999. On 22 December 2005 the Tribunal found that it had no jurisdiction on the basis that as it had already discharged its functions under the Migration Act to review the delegate’s decision it no longer had jurisdiction in relation to that decision (see Jayasinghe v MIEA & Anor (1997) 76 FCR 301).
It is perhaps relevant to note that the Tribunal accepted the applicant’s submission that notification of the delegate’s decision had been invalid and that the time limit for application to the Tribunal had not commenced. Nonetheless, as indicated, the Tribunal found that as it had already discharged its functions to review the delegate’s decision in issue it no longer had jurisdiction in relation to that decision. It was of the view that the matter had been finally determined when the Tribunal conducted its review in 2002.
The applicant then sought judicial review of that Tribunal decision by proceedings commenced in this Court on 10 February 2006. These are the proceedings that the applicant seeks to have reinstated. Relevantly, at a directions hearing on 14 March 2006 a motion for summary dismissal was foreshadowed by the respondent. Orders were made by consent listing the motion for summary dismissal on 6 July 2006 and for the filing of submissions. No submissions were filed by the applicant.
There was, however, no appearance by the applicant on 6 July 2006. Nor was there any indication to the Court of any reason for non-appearance on that day at that time. Hence, the application for review of the Tribunal decision was dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules.
On 8 August 2006 the applicant filed an application to set aside the orders made by this Court on 6 July 2006. That matter was listed for hearing on 28 August 2006. There was no appearance by the applicant or for either respondent on 28 August 2006. The application was dismissed on that day for non-appearance.
On 20 November 2006 the applicant filed a further application to set aside the orders made on 6 July 2006 and an accompanying affidavit. That application was listed for hearing on 19 December 2006. There was no appearance by the applicant on 19 December 2006. I made orders dismissing his application for non-appearance. In my judgment I referred to the fact that while the application had been accompanied by an affidavit stating the applicant had been unable to attend on 6 July 2006 because of a psychological problem, no other evidence had been provided in support of that claim. I also noted that not only had the applicant not attended; there was no indication that he had contacted the Court or provided any reason for his non-attendance.
The applicant now seeks that the orders made on 19 December 2006 be set aside. He relies on an affidavit in which he states he was unable to attend the hearing on 19 December 2006 due to what he describes as “my medical problem”. There is no explanation in the affidavit of the nature of any medical problem. Nor is there any medical evidence or other corroborative evidence.
In oral submission the applicant suggested that he had mental and physical problems, that he had broken up with a girl, was too upset, had high blood pressure, sugar problems and was mentally upset because he has no work permit, that he had been injured in the eye but that he could not see a doctor because he had no money. There was no evidence before the Court to support any of these claims.
The applicant also stated in his affidavit that he had been suffering the undefined medical problem severely since April 2006 and had been inside his house for the last couple of months due to this problem. I note in respect to that claim that on none of the occasions referred to above when the applicant failed to attend Court did he contact, or claim he had contacted the Court to seek an adjournment. He participates in the hearing today by way of telephone link-up at the suggestion of the Court.
In these circumstances it is necessary to consider the applicant’s application under Rule 16.05 of the Federal Magistrates Court Rules. The Court has power under Rule 16.05 to vary or set aside an order made in the absence of a party. It is clear in this case that the first respondent does not consent to the orders being set aside. It is therefore necessary for the Court to determine whether it is appropriate to exercise its jurisdiction. The discretion must be exercised judicially and with caution although it is not so narrow or exceptional as to be virtually non-existent. An order may be set aside where it is in the interests of justice to do so (see Taylor v Taylor (1979) 143 CLR 1).
It is relevant to take into account first the reasons for non-appearance and whether the applicant can show that by accident and without fault on his part the order was made in circumstances that warrant the exercise of the discretion. Secondly, it is relevant to have regard to whether or not there is an arguable case or question raised by the applicant. In the present context this involves a consideration of whether there is any prospect of the applicant establishing any grounds for review of the Tribunal decision or whether it would be futile to set aside the orders dismissing the application for review; see Lee v MIMA [2001] FCA 1448.
As indicated, the applicant made a general claim in his affidavit of a medical problem in circumstances where no medical evidence or other supporting evidence or information has been provided. He did not contact the Court to seek an adjournment of the hearing on the last or indeed any of the prior occasions. The applicant has an extensive litigation history. He was notified after the occasions on which he failed to attend that his application for reinstatement had been dismissed for non-appearance. Having considered all of the material before me I am not satisfied that the applicant has provided a satisfactory explanation for his failure to attend.
Moreover, even if the applicant’s reasons for non-appearance were regarded as explaining his non-appearance, he has not established an arguable case on the basis of the material before the Court. I have taken into account the grounds raised in the original application for review of 10 February 2006. These are generally expressed grounds that the Tribunal erred in law in determining it did not have jurisdiction, that it erred in determining the previous proceeding was validly notified and that it had jurisdiction to accept any applications from him in the past and in determining that it validly discharged its obligation in the past proceeding. In the accompanying affidavit the applicant contended that the Tribunal had interpreted the relevant question of law incorrectly and failed to consider that it had the power to consider his application for review.
The issue of arguable case was not addressed today by the applicant in submissions. Given the Tribunal’s finding and reliance on the principles considered in Jayasinghe v MIEA, no argument has been suggested by the applicant which holds any prospect of success in establishing jurisdiction in the Tribunal to further consider his entitlement to a protection visa.
Insofar as he takes issue with the question of the Tribunal’s consideration of whether the delegate’s decision was validly notified, the Tribunal did not find that there had been a valid notification as the applicant’s application for review suggests. Rather it found that notwithstanding that there had not been a valid notification nonetheless the delegate’s decision was finally determined when the Tribunal conducted its review in 2002 and that the Tribunal had no jurisdiction having discharged its functions.
It has not been established that there is any arguable case for review of the Tribunal decision. In these circumstances there would be no utility in reinstating the applicant’s application for review of the Tribunal’s decision. Hence it is not in the interests of justice to set aside the orders that I made dismissing his application on 19 December 2006. The application for reinstatement must be dismissed and I will hear submissions in relation to costs.
The applicant has been unsuccessful. It is proper that he meet the costs of the first respondent. The amount of $300 which is sought is appropriate in the light of the nature of this and other similar matters.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 14 February 2007
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