SZCGQ v Minister for Immigration - [2005] FMCA 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCGQ v MINISTER FOR IMMIGRATION

[2005] FMCA 666

MIGRATION – Application to set aside orders dismissing application where no appearance by applicant.

Migration Act 1958 (C’th), s.412
Federal Magistrates Court Rules 2001, 13.03A(c), 16.05, 16.05(2)
Migration Regulations 1944, Regulation 4.31

Taylor v Taylor (1979) 143 CLR 1
Lie v Minister for Immigration & Multicultural Affairs [2001] FCA 1448
Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407
Girgis v Minister for Immigration & Multicultural Affairs [2001] FCA 589

Applicant:

SZCGQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2844 of 2003

Judgment of:

Barnes FM

Hearing date:

18 May 2005

Delivered at:

Sydney

Delivered on:

18 May 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application to set aside orders made on 5 April 2005 dismissing an application for review of a decision of the Refugee Review Tribunal be dismissed.
That the applicant pay the respondent's costs set in the amount of $650.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2844 of 2003

SZCGQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed on 11 May 2005, seeking that orders made by the court on 5 April 2005 be set aside pursuant to Rule 16.05(2) of the Federal Magistrates Court Rules.
The background to this application is that on 11 December 2003 the Refugee Review Tribunal decided that it did not have jurisdiction to review a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. It reached that decision because according to the Tribunal the review application was received outside the prescribed time limit.
The applicant had applied for a protection visa on 11 August 2003. The delegate's decision refusing the visa was made on 26 August 2003, and sent by registered post to the applicant's stated residential address on that day. The Tribunal had regard to the time at which the applicant was taken to have received this letter and the fact that he had to apply for review within 28 days of notification.
After the Tribunal decision, the applicant commenced proceedings in this court on 22 December 2003 seeking review of the Tribunal decision. That application repeated aspects of the applicant's claims in relation to his application for a protection visa. It concluded by stating that the applicant would explain and submit details at the hearing.
The applicant attended a directions hearing on 28 January 2004 with the assistance of a Tamil interpreter. The court made orders by consent, which were signed by the parties. The applicant was ordered to file and serve an amended application and any evidence he intended to rely on before 31 March 2004. No such amended application was filed. Orders were also made for the filing of submissions prior to the hearing. The applicant did not file submissions. I note also that on the same day, the applicant filed a notice of change of address for service in court.
The matter was listed for hearing at 10:15am on 5 April 2005. When the matter came before the court the applicant was not present and there was no indication of any explanation for his failure to appear. I made orders dismissing his application for review of the Tribunal decision pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules, for costs, and that he be notified of the effect of Rule 16.05. He commenced the proceedings now before the court on 11 May 2005.
The court has power under Rule 16.05(2) to vary or set aside an order made in the absence of a party. It is clear in this case that the 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 discretion. 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 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.
In addition to considering the applicant's reasons for non-appearance, it is relevant to have regard to whether or not there is an arguable case or question raised by the applicant or any prospect of his establishing any ground for review of the decision of the Tribunal or whether it would be futile to set aside the orders dismissing the application for review (see Lie v Minister for Immigration & Multicultural Affairs [2001] FCA 1448).
In an affidavit filed on 11 May 2005 the applicant declared that he had moved to Melbourne on a temporary basis due to personal and financial circumstances and because of the absence of support in Sydney. Unfortunately he ‘lost sight of the fact matter was listed for hearing on 5 April 2005’. He stated that he had been reporting regularly to the Department of Immigration. In the hearing today the applicant repeated these claims. When asked what his concern was with the Tribunal decision he was unable to provide any basis for a ground for review of the Tribunal decision.
Having considered all of the circumstances and the material before me, I am not persuaded that this is an appropriate case in which to exercise my discretion to set aside my orders under Rule 16.05. First the applicant has not provided a satisfactory explanation for his failure to attend. He was present at the directions hearing when orders were made by consent listing the matter for hearing on 5 April 2005. He was clearly aware from the fact that he filed a notice of change of address for service on that day that he needed to notify the court if his address had changed. Had he done so, no doubt the respondent's submissions would have been sent to him at whatever address he was living. His reasons for moving to Melbourne, while understandable in a personal sense, do not amount to an explanation that by accident or without fault on the part of the applicant he was unable, or failed to attend the hearing. There is no suggestion of any contact by the applicant with the court at the time of the hearing on 5 April 2005 or any indication that he sought an adjournment of the hearing pending his return to Sydney.
Moreover, importantly, there is no arguable case established by the applicant on his application, his oral submissions or apparent on the material before the court. He has not identified any grounds for review of the Tribunal decision. The Migration Act 1958 and Migration Regulations provide that an applicant has to apply to the Tribunal to review a delegate's decision within 28 days of notification for the Tribunal to have jurisdiction to review the decision. See section 412 of the Migration Act and Regulation 4.31 of the Migration Regulations.
The Tribunal made its decision on the basis that the application was out of time and that it had no jurisdiction to extend the time (Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407, Girgis v Minister for Immigration & Multicultural Affairs [2001] FCA 589). It has not been suggested that there is any arguable case that the Tribunal failed to calculate the relevant periods correctly or erred in its understanding of the applicable law.
In those circumstances, it would be futile to reinstate the applicant's application as it has not been demonstrated that he has any arguable case. Hence it is not in the interests of justice to set aside the orders that I made dismissing his application on 5 April 2005. The application must be dismissed and I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The respondent seeks that the applicant pay the costs of these proceedings. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.
The applicant says that his financial circumstances are ‘problematic’. That is not a reason for not awarding costs, although it may be a matter to be taken into account by the respondent in determining when and how to seek to recover costs. I consider that the amount of $650 which is sought is appropriate.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 20 May 2005