SZCAZ v Minister for Immigration (No.2)

[2005] FMCA 1014

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCAZ v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 1014

MIGRATION – PRACTICE AND PROCEDURE – Application to set aside a dismissal order made in the absence of the applicant – whether sufficient cause advanced for setting aside of the earlier order considered – nothing new raised by the applicant – no serious issue to be tried – application dismissed.

Migration Act 1958 (Cth), s.91X
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r. 13.03A(c), 13.10A, 16.05

Australian Fisheries Management Authority v PW Adams Pty Ltd (No. 2) (1996) 66 FCR 349
Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300
KM & A Chadwick Pty Ltd v Yeung (unreported, Federal Court of Australia, Tamberlin J, 2 June 1995)
Syan v Refugee Review Tribunal & Anor (1995) 61 FCR 284

Applicant: SZCAZ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2616 of 2003

Delivered on: 22 July 2005

Delivered at: Sydney

Hearing date: 14 June 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Solicitors for the Respondent: Ms D Watson of Australian Government Solicitor

ORDERS

1. The application to set aside the orders made by this Court dismissing the applicant’s application on 12 April 2005 is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2616 of 2003

SZCAZ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZCAZ”.

2. By an application filed on 3 May 2005, the applicant in the substantive proceedings moved the Court to set aside the orders made on 12 April 2005 dismissing the matter for non appearance of the applicant pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”).

3. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 1 December 2003 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 October 2003 and handed down on 5 November 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 7 February 2003 to refuse to grant the applicant and his spouse protection visas.

Background

1. The applicant and his spouse, claimed to be citizens of India. They arrived in Australia on 2 January 2003. On 10 January 2003 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-46) (“CB”). On

   
   

   7 February 2003 the delegate refused to grant protection visas (CB pp.50-61) and on 7 March 2003 the applicant and his spouse applied to the Tribunal for a review of the delegate’s decision (CB pp.62-65).

2. Only the applicant provided written claims under the Refugee Convention.  The applicant’s spouse relied on her membership of the family unit.  The applicant claimed to be a Muslim and feared persecution by Hindus in India.  He claimed that the political leaders of the BJP (Bharatiya Janata Party) Government were in support of the Hindus and together they may harm the Muslims who remained in India.  The applicant also claimed the authorities in India would not in any way protect the Muslims (CB p.299).

3. For the purpose of this application seeking that the orders of 12 April 2005 be set aside, the applicant filed an affidavit sworn on 3 May 2005 (“the affidavit of the applicant”) to be admitted into evidence.

4. For the previous Notice of Motion brought by the respondent, the following documents were filed:

   a)Notice of Motion filed on 9 March 2005 to move the Court for orders that the proceedings be dismissed as no reasonable cause of action was disclosed in relation to the proceedings or claim for relief pursuant to Rule 13.10(a) of the Rules.

   b)Affidavit of Nicholas Malcolm Wood affirmed on 8 March 2005 (“the affidavit of Mr Wood”).

   c)An affidavit of service affirmed by Nicholas Malcolm Wood on 12 April 2005 (“the affidavit of service”).

   d)A Court Book prepared by the respondent solicitors and filed and served on 10 May 2004.

Litigation history

1. A brief summary of the litigation history of this applicant is as follows:

   a)The applicant and his spouse arrived in Australia on 2 January 2003.

   b)The initial application for protection visas was lodged with the Department on 10 January 2003.

   c)The application was rejected by the delegate on 7 February 2003.

   d)The applicant sought a review of the delegate’s decision by the Tribunal on 7 March 2003.

   e)On 13 October 2003 the Tribunal, constituted by Mr S Norman, made a decision affirming the delegate’s decision to refuse to grant a protection visa.  This decision was handed down on 5 November 2003.

   f)On 1 December 2003 the applicant lodged an application with the Federal Magistrates Court of Australia seeking a review of the Tribunal’s decision.

   g)On 29 April 2004 the applicant appeared before Registrar Tesoriero at a directions hearing where short minutes of order were made requiring the applicant to file and serve an amended application setting out in full the particulars relied upon on or before 15 July 2004.

   h)On 13 July 2004 the applicant filed an amended application pursuant to the orders made by Registrar Tesoriero on 29 April 2004.

   i)On 9 March 2005 the solicitors for the respondent filed a Notice of Motion moving the Court for orders that the proceedings be dismissed as no reasonable cause of action was disclosed in relation to the proceedings.

   j)On 12 April 2005 the Notice of Motion came before this Court and the proceedings were dismissed in accordance with Rule 13.03A(c) of the Rules where the applicant did not appear (SZCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 572).

   k)On 3 May 2005 the applicant filed an application and supporting affidavit seeking that the orders of the Court made on 12 April 2005 be set aside.

Submissions

1. On 3 May 2005 the applicant filed an affidavit sworn on the same date that contained the following statement:

   “I did not receive any notice of motion to appear before Federal Magistrate Lloyd-Jones on 12 April 2005 by respondent or Federal Magistrate Court.”

2. Appended to the affidavit was a copy of a letter from the Australian Government Solicitor dated 14 April 2005 which advised the applicant of the orders made by the Court on 12 April 2005 and the provisions of Rule 16.05 of the Rules which provided the applicant with the mechanism with which to seek to vary or have set aside the judgment made on 12 April 2005.

3. The affidavit of service filed by the respondent’s solicitors on 12 April 2005 indicated that the respondent’s Notice of Motion filed on 9 March 2005 and returned on 12 April 2005, together with the affidavit of Mr Wood affirmed on 8 March 2005 had been posted to the applicant at his residential address.  The applicant confirmed during the hearing that he still resided at that address and that it had remained unchanged since the date of filing of his application in this Court on 1 December 2003.  The correspondence had not been returned to the respondent’s solicitors.  However, the applicant maintained that he had never received the respondent’s letter and the attached Notice of Motion.

4. The respondent did not consent to the orders being set aside so it was therefore necessary for the Court to determine whether it was appropriate for the Court to exercise its discretion to set aside the orders made on 12 April 2005.

Reasons

1. The Court has power under Rule 16.05 of the Rules to vary or set aside its judgment or order if it is made in the absence of a party. The orders of 12 April 2005 were made in the absence of the applicant. It was the applicant’s claim that he did not receive the correspondence from the respondent’s solicitors which contained the Notice of Motion requiring the applicant to appear before this Court on 12 April 2005. The relevant documents described in paragraph 11 above were posted to the address provided by the applicant when he filed his application with this Court seeking review of the Tribunal’s decision.

2. The applicant confirmed during the hearing that this address remained the relevant address for all correspondence directed to the applicant.  This remained the appropriate contact address for the applicant and it was obvious from the material before the Court that this was the effective postal address of the applicant as he had received other correspondence from the respondent’s solicitors both before and after the date or dates of the correspondence containing the notification of the respondent’s Notice of Motion.  The affidavit of service indicated that the respondent’s Notice of Motion was posted on 11 March 2005 which was one (1) calendar month prior to the returnable date for the Notice of Motion.  This would have provided adequate delivery time prior to the scheduled hearing date.  The applicant did not provide any other contact address for the receipt of documents.

3. The failure by the respondent to serve documents notifying the applicant of the Notice of Motion was an adequate explanation for the applicant not appearing. Therefore, there was an adequate explanation for the applicant’s non appearance on 12 April 2005. However, pursuant to s.16.05 of the Rules the Court has a discretion as to whether or not its orders should be set aside. This discretion must be exercised judicially and with caution, although it is not so narrow or exceptional to be virtually non existent: see Australian Fisheries Management Authority v PW Adams Pty Ltd (No. 2) and Autodesk Inc v Dyason (No. 2).  It is relevant to have regard to all the circumstances and, in particular, whether the applicant has an arguable case or whether to set aside the orders that were made would be futile.  In

   
   KM & A Chadwick Pty Ltd v Yeung

   , His Honour Tamberlin J states:

   “While it is relevant to consider whether there is an adequate explanation of the circumstances which lead to an order the ‘relevant touchstone’ is whether there was an arguable case or question raised before those orders are set aside.”

4. In the absence of any documentary evidence or evidence under oath that would support a contrary contention, I have to accept that the applicant has provided an explanation for his absence from the Court on 12 April 2005.  I am also mindful of the fact that the Court should not prevent a litigant from having a proper opportunity to present their case.  Therefore, I must consider whether there are any factors that persuade me that it is not appropriate to set aside the previous orders.

5. At a directions hearing before Registrar Tesoriero on 29 April 2004, the applicant consented to orders requiring him to file and serve an amended application setting out the full particulars that he intended to rely upon at a final hearing and any affidavit material in support of that amended application by 15 July 2004. At that first court date the applicant also indicated that he wished to participate in the Pilot RRT Legal Advice Scheme (NSW) in order to provide him with assistance in the preparation of his case. An adviser was allocated to the applicant and the report on the Court file indicated that the applicant participated in the Scheme and received advice on 22 June 2004. The advice was provided in sufficient time to enable the preparation of the applicant’s amended application as required by the consent orders issued by Registrar Tesoriero. The applicant did comply with those orders and filed an amended application on 13 July 2004. It was the contents of this amended application that resulted in the solicitors for the respondent filing the Notice of Motion on 9 March 2005 seeking relief pursuant to Rule 13.10(a) of the Rules on the grounds that the amended application disclosed no reasonable cause of action in relation to these proceedings brought by the applicant in his original application dated 1 December 2003.

6. The grounds contained in the amended application are as follows:

   1.A declaration that the purported decision of the Refugee Review Tribunal handed down on 5 November 2003 was not a ‘privative clause decision’ within the meaning of s474 of the Migration Act 1958.

   2.Declaration that the decision was made in excess of the jurisdiction of the Tribunal and is consequently void and of no effect.

   3.That the breach of the rules of natural justice had occurred in connection with the making of the decision.

   (a)The tribunal failed to have any proper regard to the applicant’s circumstances in considering whether it would be reasonable for him to have to relocate to another relatively small part of India.  The comments made were no more than general comments without considering the circumstances of the applicant as a Muslim.

   (b)Further in finding it would be reasonable for the applicant to have to relocate to another part of India the tribunal by implication accepted that the applicant may well suffer harm if he was to return to his home state.

   (c)The decision was otherwise contrary to law.

   (d)That the procedure that were required by law to be observed in connection with the making of the decision were not observed.

7. The only ground of review identified in the amended application was that a breach of the rules of natural justice had occurred.  In support of this single ground there were four particulars.

8. The first particular was that the Tribunal failed to have “any proper regard to the applicant’s circumstances” in relation to the question of relocation.  No error of law or jurisdictional error was referred to or made out by this pleading.  The Tribunal’s decision specifically addressed the individual circumstances of the applicant when considering whether it would be reasonable for him to relocate.  The Tribunal commenced its analysis as follows:

   “… even if I were to accept the applicant had a profile in Gujarat that would give rise to a well founded fear of persecution for a Convention reason, I find he could safely and reasonably relocate within India to avoid harm, to either Tamil Nadu, Andhra Pradesh, or Kerala and Karnataka.  I note that discriminatory behaviour has been reported in these “safe” states however, I do not accept such harm as “biased interpretations of postal regulations, refusals to allocate land for the building of churches etc,” involves sufficiently serious harm to the person such as to constitute persecution for the purposes of the Refugee Convention.”   (CB pp.302-303)

9. A number of aspects in respect of relocation were discussed with the applicant during the Tribunal hearing after considering each of the issues of education, language, ability to find work or establish a business, and the Tribunal member concluded that he found it reasonable to expect the applicant to safely relocate within India.  No arguable ground has been made out by this particular.

10. The second particular also related to the issue of relocation and appeared to attack the Tribunal in its consideration of this issue.  It was submitted by the respondent’s solicitor that the thrust of the particular appeared to be that because the Tribunal considered the issue of relocation that the Tribunal was accepting that the applicant would suffer harm if returned to his home state.  The Tribunal, without making a conclusive finding on the issue of well founded fear of persecution in the applicant’s home state, was prepared to assume in favour of the applicant on this point (see extract above).  The Tribunal referred to and followed the approach endorsed in Syan v Refugee Review Tribunal & Anor in this regard.  No arguable jurisdictional error has been disclosed in this approach.

11. The third particular was an unparticularised assertion that the decision was otherwise contrary to law.  No arguable ground was disclosed in this point.

12. The fourth particular referred to procedures that were not observed. There was no further particularisation of this point. The decision of the Tribunal disclosed that the Tribunal discussed all relevant concerns with the applicant and thereto was nothing to base an argument that the Tribunal failed to observe the statutory procedures imposed under the Act.

13. The documentation that the applicant relied upon revealed no arguable case.  The amended application was filed after he had participated in the free legal advice scheme, although the document does not reflect this.  The remaining claim in the application before the Court was that the applicant should be allowed to appear before the Court for his final hearing which is scheduled for 8 Februarys 2006 with the help of his legal adviser.  The applicant contended that the rules of natural justice have been breached in connection with the making of the Tribunal’s decision.  There were no particulars of such claim although the pleadings were drafted in the form of particulars although their content did not identify or suggest what rules of natural justice had been breached.  There was no evidence before the Court to support such a claim.  All that the applicant indicated before the Court was that he could not return to his country.  There was nothing in the Tribunal’s reasons for decision and the material before the Court to suggest an arguable claim of a breach of natural justice.

14. The applicant attended a Tribunal hearing on 23 September 2003 to give oral evidence and to submit written evidence which consisted of reports and magazine articles, photographs and various documents in support of his claim.  Various other documents were submitted by the applicant on two occasions, both before and after the Tribunal hearing.

Conclusion

1. A reading of the Tribunal’s decision indicated that those issues were addressed and discussed with the applicant.  There was no arguable case raised by the applicant in his application.  His application for review of the Tribunal’s decision has no prospects of success.  It would be doomed to fail.  In all the circumstances of this case, despite the explanation provided by the applicant for his non appearance, on the material before the Court I consider it would be futile to reinstate this matter.  To do so would merely delay the inevitable dismissal of the applicant’s application to review the Tribunal’s decision.

2. I am satisfied that an order for costs should be made in this matter.

   
   

   I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  22 July 2005