SZCTQ v Minister for Immigration

[2005] FMCA 252

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCTQ v MINISTER FOR IMMIGRATION [2005] FMCA 252

MIGRATION – Application to set aside orders dismissing application for non-appearance – whether adequate explanation for non-appearance – whether arguable case – whether futile to set aside orders.

Applicant: SZCTQ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 448 of 2004

Judgment of: Barnes FM

Hearing date: 25 February 2005

Delivered at: Sydney

Delivered on: 25 February 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application under Rule 16.05 of the Federal Magistrates Court Rules is dismissed.

2. That the applicant pay the respondents costs set in the amount of $500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 448 of 2004

SZCTQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 24 January 2005.  The applicant seeks that the court set aside orders that were made on 14 December 2004 dismissing her application for review of a decision of the Refugee Review Tribunal for non-appearance. 

2. The background to these proceedings is that the applicant is a citizen of India who arrived in Australia with her daughter on 1 August 2003.  She sought a protection visa.  It was refused.  She sought review by the Tribunal.  On 3 February 2004 the Tribunal affirmed the decision not grant her or her daughter protection visas. 

3. She sought review of that decision by application filed in this court on 23 February 2004.  The grounds in that application were as follows:

   1.  I asked natural justice.

   2.  The RRT asked irrelevant questions from the interview.

   3.  RRT favour to DIMIA.

   4.  The Tribunal failed to make reference to the country report.

4. The applicant attended a directions hearing on 24 June 2004.  She had the assistance of a Tamil interpreter.  Consent orders were made that, among other things, the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant and any evidence upon which she proposed to rely by 30 September 2004.  The orders also provided that if that did not occur the respondent could request that the matter be listed in a non-compliance list with the intention of applying for summary dismissal due to the applicant’s non-compliance with the direction of the court. 

5. The applicant did not file an amended application or any other evidence.  On 19 November 2004 the solicitors for the respondent wrote to the applicant drawing her attention to the order that required her to file and serve an amended application by 30 September 2004, stating that they were taking steps to have the matter listed in a non-compliance list and that they would apply to have the matter summarily dismissed.  In other words, this letter reminded the applicant of her obligations and warned her again of the consequences.  She did not file any amended application. 

6. On 23 November 2004 the solicitors for the respondent wrote to the applicant, again advising her that as she had not complied with the order to file an amended application with particulars and any evidence relied on by 30 September 2004 and the matter had been put in a non-compliance list on 14 December 2004. 

7. The applicant did not attend the court at the place and time fixed on

   
   

   14 December 2004.  There is no record on the court file of any correspondence or contact by the applicant with the court or provision of any reason for her non-appearance at that time.  According to an affidavit sworn by a solicitor for the respondent on 13 December 2004, there had been no contact by the applicant with the solicitors for the respondent. 

8. On 14 December 2004 I dismissed the application for non appearance of the applicant pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules.

9. On 24 January 2005 the applicant filed an application to set aside this order.  She claimed that she had been unable to attend due to physical illness on 14 December 2004.  Attached to the application was a letter to the court stating that on 11 December 2004 she had sent a letter to the court requesting that the matter be postponed due to her illness and enclosing a copy of a medical certificate.  There is no such letter the court file.  The applicant was asked if she had a copy of this letter seeking an adjournment or notifying of the applicant’s illness on to give to the court.  She did not.  A medical certificate provided by the applicant with the application of 24 January 2005 stated that she was suffering from viral bronchitis and was unfit for work, school or court from 10 December to 26 December 2004.  It is dated 10 December 2004. 

10. The court has power under Rule 16.05 of the Federal Magistrates Court Rules to vary or set aside its judgment or order after it has been entered if it is made in the absence of a party. The order of 14 December 2004 was made in the absence of the applicant. While it has not been established that she notified the Court or the respondent’s solicitors of her inability to attend court prior to her application of 24 January 2004, the medical certificate is contemporaneous. It relates to attending court and covers the relevant period. It does provide an adequate reason for her non-appearance. However, the respondent does not consent to the orders being set aside.

11. While there is an adequate explanation for the applicant's non appearance on 14 December 2004, the court has a discretion (which must be exercised with caution: see Australian Fisheries Management Authority v PW Adams Pty Ltd (No.2) (1996) 66 FCR 349 and Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300) as to whether or not orders should be set aside. It is relevant to have regard to all of 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. As Tamberlin J stated in KM & A Chadwick Pty Ltd v Yeung (Federal Court NG3187/94, 2 June 1995, unreported) while it is relevant to consider whether there is an adequate explanation of the circumstances which led to orders (in that case a summary judgment), the ‘relevant touchstone’ is whether there was an arguable case or question raised. 

12. Because the applicant has now provided an explanation for her absence on 14 December 2004, I have considered carefully all of the circumstances of this case, being mindful of the fact that the court should be reluctant to prevent litigants having a proper opportunity to present their cases.  There are, however, a number of factors that persuade me that in all the circumstances this is not an appropriate case in which the orders should be set aside. 

13. It has not been established that the applicant notified the court of her inability to attend court on 14 December 2004 until she filed this application on 24 January 2005.  Apart from the applicant's assertions, there is no evidence that she contacted either the court or the respondent solicitors in relation to her inability to attend on

    
    

    14 December 2004. 

14. Further, she failed to comply with the order made at the directions hearing on 24 June 2004 for the filing and service of a particularised amended application and evidence upon which she proposed to rely by 30 September 2004.  She was warned of the possibility that the respondent would seek summary dismissal of her application if she did not file an amended application: in the consent orders of 24 June 2004 and in letters from the respondent’s solicitors dated 19 November 2004 and 23 November 2004.  She did not file an amended application at any time prior to her being notified of the dismissal of her application.  Nor did she contact the court or the solicitors for the respondents.  The applicant has provided no explanation for her failure to provide an amended application.  

15. Nor has she not given any indication that she is or would be in a position to file any amended application were the orders set aside.  She did submit to the court that she was waiting to receive information from India.  However that does not address the question of the need to file and serve an amended application with particulars of the grounds relied on.  It may be that the applicant may see obtaining information from India it as relevant to the question of filing further evidence (despite the fact that the time for filing such evidence was by 30 September 2004), but it is quite clear that her explanation is not a satisfactory explanation for her failure to comply with the order to file and serve an amended application. 

16. More importantly, apart from the manner in which the applicant conducted her case, the application for review that she filed is unparticularised and reveals no arguable case.  On that application her action would be doomed to failure.   She contended first that she asked natural justice, by which I take it that she means she was denied natural justice.  There are no particulars of such claim.  There is no evidence before the court to support such a claim.  All that the applicant has indicated today is that she could not return to her country.  There is nothing in the Tribunal reasons for decision or the material before the court to suggest any arguable claim of a lack of procedural fairness.  The applicant attended a Tribunal hearing and the Tribunal addressed her claims. 

17. The applicant also contended that the Tribunal asked irrelevant questions in the interview.  She provided no details.  No transcript was filed, either prior to or after 30 September 2004 (the date by which she was required to file any further evidence relied upon).  The evidentiary basis for such a claim is not established, let alone any basis for a contention that there was a jurisdictional error arising in that way.  Indeed even if it were established that the Tribunal asked what the applicant considered to be irrelevant questions, that would not constitute a jurisdictional error. 

18. The applicant's third ground was ‘RRT favour to DIMIA.’  This ground is unclear and ambiguous.  Insofar as it alleges bias, there are no particulars to support such a serious allegation.  There is nothing in the Tribunal reasons for decision or the material before the court to support any claim that the Tribunal denied the applicant natural justice.  Indeed the Tribunal accepted the claims that she made, which are described as being given frankly and without exaggeration. 

19. The applicant failed because the Tribunal was not satisfied that the harm directed at her in the past and which she feared she would suffer in the future, was directed at her for a Convention reason.  She claimed that her father-in-law opposed her marriage to his son.  She was of a lower caste to her husband and poor.  The Tribunal accepted the applicant’s claims of mistreatment by her father-in-law.  However it was not satisfied that an essential or significant reason for any harm she faced was a Convention reason.  Even if each caste in India was a particular social group for the purposes of the Convention, the Tribunal found that the evidence before it did not support a finding that the applicant’s membership of her caste was the essential and significant reason for the harm directed against her.  Rather, the Tribunal found that, as the applicant had agreed, essentially her father-in-law believed that his son should marry a woman of whom he approved who would help maintain his family’s honour and social status.  Nor was there evidence to support a finding that the police did not assist the applicant for reasons of any Convention ground.  Accepting the applicant’s evidence that a person from her caste would normally receive assistance, but that it was her father-in-law’s power and possibly the payment of a bribe that meant that the police did nothing to assist her, the Tribunal found nothing in the evidence to support a conclusion that any failure to act was a result of state policy or a failure of state protection.  Rather the Tribunal found it to be the actions of individual officers who were prepared to bow to influence and pressure.  No arguable case of jurisdictional error in these findings is apparent on the material before the court either in the manner contended in the application for review or otherwise. 

20. Finally, the applicant claimed that the Tribunal failed to make reference to ‘the country report’.  Again there is no indication of what the country report is to which this ground refers.  There is nothing to suggest that the applicant provided the Tribunal with country information.  While the Tribunal does not refer to any independent country information in its decision, that does not of itself provide a basis for an arguable ground of jurisdictional error.  The decision turned on the facts of the case. 

21. The applicant has given no indication that she is able or willing to file and serve an amended application.  She raised the possibility of obtaining further information from India, but, as I explained to her, the proceedings in this court in relation to Tribunal decisions are not by way of re-hearing.  There is nothing to suggest that such further information would assist the applicant to establish a jurisdictional error on the part of the Tribunal.  I am not satisfied that it is appropriate to set aside the orders on the basis of the applicant’s wish to provide further information from India. 

22. There is no arguable case raised by the applicant in her application. Her application for review of the Tribunal decision has no prospect of success. It would be doomed to fail. In all the circumstances of this case, despite the explanation the applicant has provided for her non-appearance, on the material before the court I consider that it would be futile to reinstate this matter. To do so would merely delay the inevitable dismissal of her application to review the Tribunal decision. In these exceptional circumstances the applicant's application under Rule 16.05 of the Federal Magistrates Court Rules should be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the respondent’s costs.  In making that decision I have had regard to the fact that while the applicant has now provided a reason for her non-appearance, she failed to notify the court of her inability to attend on 14 December 2004 until 24 January 2005.  There was no arguable basis for her claim of judicial review.  The amount of $500 is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 March 2005.