SZDAP v Minister for Immigration

[2006] FMCA 659

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDAP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 659

MIGRATION – Application to set aside orders made dismissing application in absence of the Applicant.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001, rr.13.03, 16.05

Taylor v Taylor (1979) 143 CLR 1
Lee v Minister for Immigration and Multicultural Affairs [2001] FCA 1448
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant: SZDAP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG760 of 2004

Judgment of: Barnes FM

Hearing date: 26 April 2006

Delivered at: Sydney

Delivered on: 26 April 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The orders made by the Court on 4 April 2006 be set aside.

2. The Refugee Review Tribunal be joined as second respondent to the proceedings.

3. The matter be listed for final hearing before FM Barnes at 2:15pm on Monday, 22 May 2006.

4. The applicant pay the first respondent’s costs of today in the sum of $400.

NOTATION

It is noted that if the hearing date of 22 May 2006 is unsuitable the matter will be adjourned to a date to be fixed in chambers and parties will be notified in writing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG760 of 2004

SZDAP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 5 April 2006 seeking that orders made by the Court on 4 April 2006 be set aside. The Court has the power to set aside its orders under Rule 16.05 of the Federal Magistrates Court Rules 2001. The applicant had filed an application to review a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. Final hearing of that application was listed for 4 April 2006 at 10:15am. The applicant did not appear on that date when the matter was called at the time listed or after some time was allowed. His application was dismissed after 10:30 am pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.  He was ordered to pay the costs of the first respondent. 

2. The applicant filed an application to set aside the orders on 5 April 2006.  In that application he stated that he had searched for the venue for his hearing but was misguided several times as to which level of the building he was supposed to be on and was delayed beyond the time for the hearing.  He repeated this claim in an affidavit sworn on 4 April 2006.  He elaborated on these claims in oral submissions.  He was not required for cross-examination.  In those circumstances I accept his explanation of what occurred.  

3. The Court has power under Rule 16.05 to vary or set aside an order made in the absence of a party. Indeed, in this case the application was made before the orders were entered and the Court has a general power under Rule 16.05(1). The respondent did 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. An order may be set aside where it is in the interests of justice to do so: Taylor v Taylor (1979) 143 CLR 1.

4. I consider that 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, it is relevant to have regard to whether 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 Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448).

5. In the particular circumstances of this case, having considered all of the circumstances and the material before me, I consider this is an appropriate case in which to exercise my discretion to set aside my orders under Rule 16.05. While it is an applicant's responsibility to arrive at court on time and to locate the courtroom in which his case is to be heard, the unchallenged evidence of the applicant is that he was misguided as to where the hearing was to be held and arrived too late. Were this the only evidence before me it would not suffice. However, of particular relevance in this case is that, as is apparent from the respondent's outline of submissions and from the Tribunal reasons for decision, this is not a case in which I am satisfied that it would be futile to set aside the orders dismissing the application for review.

6. Despite the fact that these matters are not raised in the applicant's amended application, there are two issues of substance quite properly addressed in the respondent's written submissions, that are in any event apparent on the material before the Court.  These are the natural justice issue and so called ‘SZEEU issue’ (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2) as to whether or not there was a failure by the Tribunal to comply with s.424A(1) of the Migration Act 1958.  This is a case in which there is an arguable case on the material before the Court. 

7. I also bear in mind that the application by the applicant to reinstate his case was signed on 4 April 2006 and filed the next day.  It is not a case in which there has been any delay in his seeking to have my orders dismissing his application set aside.  In all of the circumstances then, I consider that the appropriate order is to set aside the orders made on 4 April 2006 and list the matter for final hearing at the first available date. 

8. The solicitor for the first respondent indicated that if I was inclined to make such orders then the respondent sought the costs of today in the sum of $400.  The applicant made no comment on this application.  I consider that where the ultimate responsibility for his non-appearance is that of the applicant, albeit that he may have been misguided, in all the circumstances it is appropriate that he should meet the costs of the respondent of today necessitated because of the applicant’s failure to appear on the date of the hearing.  The amount of $400 is appropriate.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  5 May 2006