SZDJP v Minister for Immigration - [2005] FMCA 328

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJP v MINISTER FOR IMMIGRATION

[2005] FMCA 328

MIGRATION – Application to set aside dismissal of application on non–appearance of applicant.

Migration Act 1958

Applicant:

SZDJP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1181 of 2004

Judgment of:

Barnes FM

Hearing date:

2 March 2005

Delivered at:

Sydney

Delivered on:

2 March 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

That the application to set aside orders made on 14 December 2004 dismissing the applicant's application is dismissed.
That the applicant pay the respondent's costs set in the amount of $300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1181 OF 2004

SZDJP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed on 2 February 2005 in which the applicant seeks that the court set aside orders made on 14 December 2004. The background to this application is that the applicant, who is a citizen of Fiji, applied for a protection visa in November 2003. That application was refused and he sought review by the Refugee Review Tribunal.

He advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal making a decision on the review without taking any further action to allow or enable him to appear before it. On 15 April 2004 the Tribunal handed down a decision affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant sought review of that decision by application filed in this court on 22 April 2004. That application contained generally expressed and unparticularised grounds contending that the Tribunal exceeded jurisdiction and denied procedural fairness and erred in law in a way amounting to jurisdictional error.
The applicant attended a directions hearing on 4 August 2004. On that day he agreed to consent orders, including an order that he file and serve an amended application with complete particulars and any additional affidavit evidence by 29 October 2004, that the matter be listed for hearing at 2.15pm on 14 December 2004, that he file and serve written submissions five days prior to the hearing and that the respondent file and serve written submissions two days prior to the hearing.
The applicant did not file any amended application. However, he wrote to the Australian Government Solicitor and a copy was provided to the court on 17 October 2004, applying for an extension of time in which to submit his amended application. A copy of this letter was sent to the Court. The reason given was:
My state of mind not being to think and react responsibly due to approximately 8.5mm round cyst discovered in my brain.
The applicant claimed that he suffered from frequent attacks of acute headaches, was unable to concentrate on matters for prolonged periods of time and sought an extension of time for submitting his amended application based on these circumstances.
Attached to that letter was a report from Rayscan Imaging of an “MRI scan of the brain and MR arthrogram” dated 9 September 2004 which described observation of a “small 8mm rounded area” and a most likely diagnosis of “a small epidermoid” and concluded:
Given uncertainty regarding its underlying nature, follow up imaging is recommended.
On 10 December 2004 the solicitors for the respondent wrote to the applicant at his address for service by express post enclosing the respondent's outline of submissions and list of authorities and noting that the matter was listed for hearing before me at 2.15pm on

14 December 2004 at the Law Courts building.
There was no appearance by or on behalf of the applicant on

14 December 2004. Nor is there any suggestion that there was any contemporaneous contact by the applicant with the registry or with the solicitors for the respondent explaining his non-appearance at the hearing. In the absence of the applicant I made orders dismissing the application for non-appearance and requiring the respondent to notify the applicant of the effect of Rule 16.05 of the Federal Magistrates Court Rules. The solicitors for the respondent complied with this order.
According to an affidavit filed by the solicitor for the respondent, the applicant telephoned them on 21 December 2004 querying the dismissal on the basis that he had sent a letter on 17 October 2004.

He also wrote to the Registrar of the Court on 23 December 2004 stating that he did not come to court on 14 December 2004 because he was still waiting for a response from the court and the respondent’s solicitor in relation to the extension of time requested in his letter of

17 October 2004. It is notable, however, that the letter of 17 October 2004 sought an extension of time to file and serve an amended application. It makes no reference to the hearing. Indeed it was addressed to the respondent. It did not seeking a response from the court and did not request an adjournment of the hearing.
On 2 February 2005 the applicant filed the application that is presently before the court seeking that the orders made on 14 December 2004 be set aside and requesting an extension of time to file an amended application pending the results of his medical examination. An accompanying affidavit states that he did not attend court on

14 December 2004 due to an approximately 8.5 millimetre round cyst discovered in his brain. Attached to the affidavit was the same report from Rayscan Imaging of 9 September 2004. The applicant claimed to be “currently undergoing series of tests and examinations till this problem is fully diagnosed with a possible cure”, that the cyst had grown prior to 9 September 2004 and that he suffered frequent attacks of acute headaches and was unable to concentrate. However, he provided no further medical evidence. In particular he provided no medical evidence in relation to his condition at the time of the hearing.
In submissions today the applicant told the court that he was sick at the time of the hearing but that he did not go to the doctor and had no medical certificate. He had no other medical evidence to put before the court. He told the court that he had an appointment to see a specialist on 11 March 2005 for an angiogram.
The court has power under Rule 16.05 of the Federal Magistrates Court Rules to set aside orders made in the absence of a party. It is necessary to consider first whether the applicant has provided, or whether there is, an adequate reason for his non-appearance. There is nothing to suggest, and it has not been claimed, that the applicant was not aware of the hearing date which was set at the directions hearing which he attended.
It is the case that he did write to the solicitors for the respondent seeking an extension of time in which to file an amended application. It is also the case that there is no indication of a written response to that request from the solicitors for the respondent. The applicant indicated in his letter to the court (although not in his affidavit or in his submissions today) that he had not attended the hearing because he was waiting for a response from the court or the solicitor for the respondents. However, I am not satisfied that that provides an adequate reason for his non-appearance or failure to at least contact the court in relation to the hearing date. The request of 17 October 2004 related to an amended application, not to the hearing date. It was a request made to the solicitors for the respondent and provided to the court for information. It was not a request made to the court. Moreover, any doubt that the applicant might have had was clarified by the fact that the solicitor for the respondents wrote to him on 10 December 2004 confirming that the hearing was on 14 December 2004. There is no evidence that he thereafter contacted the solicitors for the respondent or the court prior to or at the time of the hearing on 14 December 2004.
I have also considered his claims about his medical condition. He provided a copy of the results of a medical examination dated
9 September 2004. That report relevantly stated that given uncertainty regarding the underlying nature of what was observed follow-up imaging was recommended. The report and the applicant’s claims do not constitute adequate medical evidence as to the applicant's fitness, or lack of fitness, to attend a hearing on 14 December 2004. Moreover, not only did the applicant not provide any further medical evidence at that time, he has not provided any further medical evidence thereafter. The fact that he has an appointment for an angiogram on 11 March 2005 does not, either of itself or in conjunction with the other evidence before the court, establish an adequate reason for his failure to attend the hearing on
14 December 2004. The applicant has not satisfied me, nor am I satisfied on the material before the court, that there was an adequate explanation for his failure to attend the hearing on 14 December 2004.
I have also taken into account whether, if the application were granted, there is apparent on the material before the court an arguable case on the part of the applicant. As indicated, the application for review of the Tribunal decision contains general, unparticularised grounds. It does not on its face give rise to any arguable grounds of review.
The applicant’s general complaint that the Tribunal exceeded jurisdiction is unhelpful. There are no particulars of his claim of denial of procedural fairness and it is notable in that respect that this is not a case where he simply failed to attend a Tribunal hearing; rather his migration agent advised that he was not attending and asked the Tribunal to make the decision on the basis of the documents before it. In those circumstances, on the limited information before it, the Tribunal was not satisfied that the applicant had a well-founded fear of Convention persecution should he return to Fiji at the time of the decision or in the reasonably foreseeable future. There is no explanation by the applicant of the manner in which the Tribunal is said to have erred in law and no such error is apparent.
The applicant was not able in the hearing today to indicate any areas of concern with the Tribunal decision. He described briefly his situation in Fiji and repeated that he needed more time to file an amended application. On the material before me there is nothing to justify a finding that there is an arguable case that the Tribunal fell into jurisdictional error. In such circumstances, even if I had been satisfied that the applicant had provided an adequate reason for his failure to attend the hearing, it would be futile to reinstate his application for review of the Tribunal decision.
In all circumstances of this case I consider that it is not appropriate to set aside the orders that I made dismissing the applicant's application.

RECORDED : NOT TRANSCRIBED

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: