SZCHR v Minister for Immigration
[2006] FMCA 1694
•8 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCHR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1694 |
| MIGRATION – Protection visa – application for reinstatement – no arguable case – non-appearance by Applicant. |
| Federal Magistrates Court Rules 2001, rr.13.03A, 13.03A(c),16.05 |
| Applicant: | SZCHR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3203 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2006 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the First Respondent: | Ms E Palmer |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed 19 September 2006 be dismissed on the ground that it does not disclose an arguable case which would otherwise justify reinstatement of the substantive application, and/or dismissed on the ground of non-appearance of the Applicant this day, pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
The Applicant should pay the First Respondent’s costs fixed in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3203 of 2005
| SZCHR |
Applicant
And
| MINISTER FOR IMMIGRATION &MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Applicant, who had previously sought judicial review of a decision of the Refugee Review Tribunal which had affirmed the decision of the First Respondent’s delegate refusing an application for a protection visa, had failed to attend the court when the substantive application was listed for hearing on 14 August 2006. On that occasion the court dismissed the application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 and made other orders including an order that the Applicant pay the First Respondent’s costs.
The application before this court I take to be an application for reinstatement, presumably pursuant to r.16.05 of the Federal Magistrates Court Rules2001. The application was filed on
19 September 2006 and the return date is 8 November 2006 at 11.30am. The application is supported by an Affidavit which purports to be sworn by the Applicant on 3 September 2006. It appears that the First Respondent was not served with either the Application or the supporting Affidavit, though it is noted that there is indeed an appearance for the First Respondent this day. Ms Palmer appears on the basis that the listing of this application was brought to her attention by her client and consistent with the obligations as a model litigant, the First Respondent appropriately has arranged for representation on this day.
The matter having been called outside this court, revealed that there was no appearance for the Applicant. Again, consistent with the obligations of the First Respondent as a model litigant, Ms Palmer helpfully suggested that it may be prudent in the circumstances to arrange for the matter to be called outside another court where matters of this kind are usually heard and in particular, where this matter had previously been listed on the occasion when it was dismissed for non‑appearance. The matter was then subsequently called and it was noted that the Associate was assisted by an interpreter to the extent that that may be necessary. In any event, again there was no appearance for the Applicant.
It is noted that in the Affidavit in support of the application for reinstatement, the Applicant has deposed to being unable to attend the hearing before this court on 14 August 2006 on the basis that the applicant was, to use his words, “put in jail (Parklea) on 10 August 2006 & was not released until 22nd of August 2006”. In the Affidavit the Applicant then deposes that he was unable to attend the hearing. He further goes on to state in the Affidavit that he believes he is a refugee and otherwise refers to the decision of the Tribunal, and refers to his own financial circumstances and inability to seek professional advice or obtain a copy of tapes or transcripts of the matter before this court. He further asserts that the Tribunal “failed to understand my situation and that the threats were motivated by a convention reason”.
Those general assertions are to a large extent consistent with the claims made in the Amended Application in relation to the substantive matter filed 28 February 2006, which essentially were described, in my view accurately, in the First Respondent’s submissions before the court as “unparticularised, formulaic type submissions” which do not, I accept, reveal any proper basis upon which the court could determine there has been jurisdictional error. The material currently before the court combined with the non-appearance of the Applicant leads me to conclude that there is, indeed, no arguable case which would entitle this court in any event in the exercise of its discretion to set aside the order made on 14 August 2006.
Despite the absence of the Applicant I would be prepared to accept that, at least prima facie, there may be an explanation for non-attendance that day. However, I note that no request was made for a gaol order to be signed or for the Applicant to otherwise appear by video link or audio link from prison on the day of the hearing. Nevertheless, superficially there may appear to be an explanation for non-attendance. An explanation is only one part of the process.
The court, in considering whether to set aside an order made in the absence of an Applicant, needs to further consider whether on the material before it, there is indeed an arguable case which would provide some basis upon which it could be properly concluded that it is worthwhile reinstating the application.
Even if I were to accept the explanation, it is clear to me, on the material before me, that in any event there is no arguable case and on that basis the application for reinstatement is refused. I have gone to the trouble of refusing the application, albeit in the absence of the Applicant, so that it will be clear from these reasons that the court has given consideration to the material currently before it. In the alternative, in my view, having regard to the non-appearance of the Applicant, it would otherwise have been appropriate to make an order pursuant to r.13.03A that this application, filed 19 September 2006 be dismissed as a result of the non-appearance of the Applicant, pursuant to r.13.03A(c).
On balance, however, I have concluded that the preferable approach to an application for reinstatement is to refuse that application with costs. In the event that I am in error in relation to that conclusion I would otherwise, in the alternative, order that the application filed 19 September 2006 be dismissed for non-appearance pursuant to r.13.03A(c) of the Federal Magistrates Court Rules2001.
The orders I make are:
(1)The application filed 19 September 2006 be dismissed on the ground that it does not disclose an arguable case which would otherwise justify reinstatement of the substantive application, and/or dismissed on the ground of non-appearance of the Applicant this day, pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001;
(2)The Applicant should pay the First Respondent’s costs fixed in the sum of $500.00.
I will direct that the reasons for decision that I have just given be transcribed and upon review shall constitute my reasons for judgment in this matter, and that a sealed copy of this order and the judgment be forwarded to the Applicant by prepaid post by the court within seven days of this date. I do not require the First Respondent to bring to the attention of the application the provision relating to reinstatement set out in the Rules, for the obvious reason that it is clear from this application which I have just dismissed that the Applicant is well aware of that provision.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 November 2006
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