SZCEQ v Minister for Immigration
[2005] FMCA 1141
•15 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCEQ v MINISTER FOR IMMIGRATION | [2005] FMCA 1141 |
| MIGRATION – Refugee – application for reinstatement of matter pursuant to rule 16.05(2)(a). |
| Migration Act 1958, ss.91X, 424A(3)(a), 422B Federal Magistrates Court Rules 2001. Rules 9.03, 16.05(2)(a), 13.03A(c) |
| Capital Web Works Pty Ltd v Adult Shop.com. Limited & Ors [2002] FCA 389 Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207 NAJN v Minister for Immigration and Multicultural Affairs [2003] FMCA 414 Australian Fisheries Management Authority v P. W. Adams Pty Limited No.2 (1996) 66 FCR 349 NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 205 |
| Applicant: | SZCEQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SZ 2761 of 2003 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 July 2005 |
| Date of Last Submission: | 12 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Kumar |
| Solicitors for the Applicant: | Bharati Solicitors |
| Counsel for the Respondent: | Mr. Z. Chami |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application to set aside the orders made on 21 September 2004 is dismissed.
The applicant to pay the respondent’s costs set in the amount of $1250 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
Pursuant to s.91X of the Migration Act that there be no publication of the applicant's name.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2761 of 2003
| SZCEQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application filed by the applicant on 29 November 2004 seeking that the orders made by me on 21 September 2004 be set aside pursuant to rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (“Federal Magistrates Court Rules”).
By way of background information, the applicant arrived in Australia on 9 September 2001. On 12 October 2001 he applied for a protection visa on the basis of his religion and imputed political opinion. On 12 June 2002 the application for a protection visa was refused by a delegate of the Minister. The applicant applied for review of this decision on 11 July 2002. On 20 October 2003 the Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa. On 15 December 2003 the applicant filed an application with the Federal Magistrates Court for review of the Tribunal decision. The Federal Magistrates Court then listed this matter for final hearing on 21 September 2004.
On 21 September 2004, as a result of the non-appearance of the applicant, I made an order pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules, dismissing the application for review of the Refugee Review Tribunal (“the Tribunal”) decision handed down on 14 November 2003, affirming a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. On the same day, the applicant’s then solicitor, Mr. Ejaz Khan of Ward Maxwell & Co. Solicitors, sought leave to withdraw from the matter, having served on the respondent and attempted to serve on the applicant, without success, a Notice of Ceasing to Act on 15 September 2004. On this day, Mr. Khan filed an affidavit in support of the steps that he had taken to contact the applicant.
On 11 October 2004 the applicant filed a Notice of Appeal in the Federal Court, which was then listed for a directions hearing on 26 October 2004 before Moore J. On this day the respondent sought that the appeal be dismissed as being incompetent, but Moore J. adjourned the matter to 3 November 2004. On 3 November 2004, Moore J. made orders by consent to dismiss the appeal. On 29 November 2004 the applicant filed a Notice of Motion in the Federal Magistrates Court seeking to set aside the orders made on 21 September 2004.
At the hearing before me today the applicant was represented by Mr. Kumar and the respondent by Mr. Chami. Mr. Kumar tendered an affidavit sworn by the applicant on 26 November 2004. The applicant requests that I exercise my discretion to set aside the orders on the grounds that he did not appear at the final hearing on 21 September 2004 as he believed that he had legal representation, and that he was not required to attend personally.
According to the affidavit of Mr. Khan, filed in Court on 21 September 2004, Mr. Khan had in fact written to the applicant on 6 September 2004, at the only address that the applicant had provided, indicating that he would be withdrawing as the applicant’s solicitor, in accordance with rule 9.03 of the Federal Magistrates Court Rules, if the applicant failed to make contact within 7 days. Mr. Khan also forwarded a copy of this letter to the applicant’s migration agent Mr. Harold Jones, the only other possible way of contacting the applicant. In addition Mr. Khan, in his sworn affidavit, states that he spoke to the applicant’s migration agent on 15 September 2004 who indicated that he had also tried without success to contact the applicant.
In support of the applicant’s affidavit, Mr. Kumar who now represents the applicant made submissions that the applicant failed, through no fault of his own, to attend the hearing in his matter before the Court on 21 September 2004 “because he did not know that this matter was on.” Further, he asserted that the applicant believed that he had legal representation, and that he was not required to attend. Mr. Kumar contended that the applicant was “confused” as to the time and date of the hearing but was aware that “something was on in Court on the 21st”. Mr. Kumar argued that the applicant was placed in a situation that the Court should consider as amounting to “exceptional circumstances” because he comes from a non-English speaking background and had difficulties understanding the procedures of the Court, which added to the difficulty that he was living in a remote area in rural Victoria.
Mr. Chami for the respondent submitted that the applicant’s explanation is not sufficient to justify why he failed to attend the hearing on 21 September 2004 and that this was not a case where “he were laid up in bed in a hospital ward suffering from some illness.” As to the applicant’s statement that he was not aware that he had to attend the hearing because he had solicitors, the respondent argues that this explanation refers only to the hearing on 26 October 2004 before Moore J. and hence does not provide any reason as to failure of attendance at the hearing on 21 September 2004 before me. By way of further evidence, the respondent referred to a letter sent to the applicant’s former solicitors, Ward Maxwell & Co. by the Court, dated 31 August 2004, confirming that the final hearing in the applicant’s matter was on 21 September 2004. Further, Mr. Chami for the respondent tendered a letter sent to the applicant’s address on 17 September 2004, confirming the time, date and place of the final hearing. This letter notified the applicant that:
“Should you or your legal representative fail to attend the hearing we will seek to have your matter dismissed with costs.”
The letter was tendered into evidence as Respondent’s Exhibit 1 (“RE 1”). Mr. Chami then made a reference to the affidavit of Mr. Khan, which states that the applicant was notified by letter to the same address, of his ceasing to act in the matter.
There is clear authority that supports the proposition that the exercise of the discretion to set aside orders should only be employed in “exceptional circumstances”. In Capital Web Works Pty Ltd v Adult Shop.com. Limited & Ors [2002] FCA 389 Nicholson J, considered the corresponding order in the Federal Court Rules, consistent with the decision of the Full Court in Wati v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 where the Court said at 587 that:
“The authorities to which we have referred have emphasised that, if there is a jurisdiction to set aside orders made after they have been entered, it is “truly exceptional”.”
I note also the comments in Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207 where at 215 the High Court said:
“The power of the Court to reopen its judgments or orders is in no doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded “on a misapprehension as to the facts or the law, (Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302) where “there is some matter calling for review”, (Smith v NSW Barr Association (1992) 176 CLR 256 at 265) or where “the interests of justice so require” (Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 32). It has been repeatedly said that a heavy burden is cast upon the applicant for reopening to show that such exceptional course is required ‘without fault on his part’.”
I refer also to the comments of Federal Magistrate Barnes in NAJN v Minister for Immigration and Multicultural Affairs [2003] FMCA 414 at [7] where Her Honour, considering the decision in Australian Fisheries Management Authority v P. W. Adams Pty Limited No.2 (1996) 66 FCR 349, said:
“This is not a case where both parties consent to the setting aside of the orders. The respondent opposes such a procedure. The Court has a discretion under rule 16.05(2)(a) to set aside a judgment. Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation recognising the tension between the public interest in expeditious conduct of litigation and the obligation of the Court to ensure litigants have the opportunity to present a case where there is a real dispute. The power is generally not to be exercised unless the applicant can show that by accident and without fault on his part the order was made without his being heard. It is necessary to look at the whole circumstances.”
The respondent made submissions that the reasons given by the applicant in his affidavit, and also by way of evidence in Court today, do not amount to exceptional circumstances to justify the setting aside of the original orders made. In contrast, the applicant submits that there is a lesser test which requires an “explanation” by the applicant for failure to attend, coupled with “showing [an] arguable case”. I note the evidence, by way of affidavit, of the applicant's former solicitor confirming that he sent letters to both the applicant’s address and also a copy to his migration agent Mr. Jones, remains unchallenged before the Court. In looking at the evidence that is before me, I am not persuaded by the explanation that the applicant has given by way of evidence. And for that matter, whether we are talking about exceptional circumstances or some lesser test, as put forward by Counsel for the applicant today, the common thread between each of the two sets of tests is the part played by the applicant and clearly we have a situation where an applicant knows that a matter has been set down for hearing, a matter that is of critical and vital importance to him.
While Mr. Kumar argued that the applicant is from a non-English speaking background, who has difficulties in understanding procedures of the Court and lives in a remote area in rural Victoria, what I also have in my mind is that this is an application reviewing a decision of utmost significance to the applicant, and that is, that he claims to be a refugee, a matter of absolute vital importance. The applicant knew when the hearing in his matter was on and has failed to persuade the Court by the explanation given by way of evidence that he does not, at least, bear some responsibility here.
Based on the material before me, I am not satisfied that the applicant has a reasonable excuse for not attending the final hearing on 21 September 2004, let alone an explanation that would satisfy the test of “exceptional circumstances” as discussed above. In any event, in looking at the applicant’s original claims for review I can see no ground that would succeed in the circumstances of this case. The grounds as contained in the original application filed 15 December 2003 are as follows:
“1. This is a review application against the decision of the Refugee Review Tribunal (RRT) handed down on 14 November 2003.
2. The Tribunal accepted the evidence of the Applicant that the Applicant departed India for Saudi Arab in 1988 due to the fear of persecution from the Indian authorities and political opposition on the basis of his religious and political belief but failed to take into account to reach to its decision.
3. The Tribunal misapplied the express and implied meaning of the term “well founded fear” and “refugee” from the Refugees Convention, especially in relation to religious persecution and police harassment therefore fell into error.
4. The Tribunal failed to afford sufficient weight to the evidence given by the Applicant in relation to police treatment, detention of the applicant by the police, bribe give to the police by the applicant’s wife to secure his release. The Tribunal fell into error by concluding that the bribe was given to the police to run the Transport business. The bribe was actually given to the police to stop them not to harass the applicant and his family in relation to the terrorist attacks on the Temple where the Applicant was serving as a priest.
5. The Tribunal relied upon substantial written material including Country reports, DFAT commentaries and media reports dating from 1991 through to 1998, dealing with the issues of the Sikh independence movement. However, the Tribunal failed to make any reference to any current information dealing with this issue and failed to investigate the Applicant’s claims fairly and properly and therefore fell into error.
6. The Tribunal failed to invite the applicant to make comments on the adverse material used to reach its decision and therefore breached the rules of procedural fairness.
7. The Tribunal breached the rules of procedural fairness and therefore the Applicant was denied Natural Justice.”
Ground 1 is an introductory statement of on substance in putting forward a ground of review.
Ground 2 is an assertion that having found that the applicant had suffered persecution in 1988, that it did not take this into account. This is factually incorrect, the Tribunal accepted events as put by the applicant up to 1988, but its subsequent findings, based on subsequent and the current situation before the Tribunal, clearly explain why ultimately the applicant did not have a well founded fear of persecution were he to return to India in the foreseeable future.
The third ground put by the applicant asserts that the Tribunal “misapplied” the applicant’s circumstances in relation to the persecution and harassment from the Indian police on the basis of his religious and political belief. It is clear that the Tribunal dealt with this issue (see CB 92 to CB 93) and gave reasons, concluding that the applicant’s mistreatment by the police in Punjab after his return to India in December 1996 was to obtain money from him, basing this on what the applicant himself had said to the Tribunal, not for any religious or other Convention reason. This finding was open to the Tribunal on the material before it. There is no error on the part of the Tribunal in reaching this conclusion on what was before it. Therefore this ground would fail.
The fourth complaint is that the Tribunal failed to afford sufficient weight to the evidence given by the applicant. As for the first part of this ground the weight the Tribunal gives to evidence put to it by the applicant and also the independent country information is a matter for the Tribunal. This is a finding of fact and a matter for the Tribunal to make a finding based on what was put to it. The second part of this ground is simply a restatement of ground 3 and fails for the same reason.
Ground 5 argues that the Tribunal fell into error as it failed to make reference to any “current information”. This ground is factually incorrect. At CB 91 the Tribunal does in fact refer to a report of December 2002 (decision made on 20 October 2003). However, even if this was factually correct, there is nothing to show that the Tribunal was not entitled to rely on the information before it and that the Tribunal ignored any other information put to it by the applicant.
Ground 6 complains that the Tribunal failed to put country information to the applicant on which it relied and therefore breached the rules of procedural fairness. As the application for review in this matter was made on 11 July 2002, s.422B of the Act applies. The information clearly falls within the exception of s.424A(3)(a) of the Act (NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 205). In any event, at CB 88 the Tribunal discussed the relevant issues with the applicant and he was given an opportunity to respond. Further, there is no demonstrated failure on the part of the Tribunal, and the applicant has not put anything before me to show that there was a breach of the common law rules of procedural fairness. I note also that ground 7 is a restatement of this ground.
I accept submissions made by both Counsel that an important factor in the exercise of my discretion is to look at, in essence, whether some great injustice or indeed any injustice would be done to the applicant in having regard to the application that was before me, that is the originating application. In that context, I rely on the assessment above of the grounds of appeal raised in the application put on by the applicant, and for all the reasons that I have indicated there is nothing here that points to any arguable case. I cannot see that those grounds would pass muster in the sense of putting forward a triable issue that should be allowed to go forward. I cannot see any demonstrable error on the part of the Tribunal. For all of the above reasons the application pursuant to rule 16.05 of the Federal Magistrates Court Rules is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 19 August 2005
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