SZDJY v Minister for Immigration
[2005] FMCA 765
•6 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDJY v MINISTER FOR IMMIGRATION | [2005] FMCA 765 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application for reinstatement of judicial review application dismissed for the non appearance of the applicant – default by the applicant’s solicitor leading to that dismissal insufficient reason to vacate the order. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | SZDJY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1205 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 6 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Jayawardena |
| Solicitors for the Respondent: | Mr P Reynolds Clayton Utz |
INTERLOCUTORY ORDERS
The application for reinstatement filed on 14 February 2005 is dismissed.
Mr Chandra Jayawardena shall pay the Minister’s costs and disbursements of and incidental to the reinstatement application, fixed in the sum of $1,800.
The applicant and the Minister have liberty to apply within 21 days for an order under rule 21.07(4)(c) of the Federal Magistrates Court Rules 2001 (Cth) that Mr Chandra Jayawardena pay the costs that the applicant is required to pay pursuant to order 2 made by the Court on 20 January 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1205 of 2004
| SZDJY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for reinstatement of a judicial review application. The application for reinstatement was filed on 14 February 2005 and is supported by a short affidavit by the applicant. Also relevant is the book of relevant documents filed on 31 August 2004, the original judicial review application filed on 23 April 2004, the order made by Registrar Hedge on 20 January 2005 dismissing the judicial review application with costs on account of the non-appearance of the applicant on that day, and written submissions prepared on behalf of the Minister by Mr Reynolds opposing the application for reinstatement.
I adopt as background the chronology appearing in paragraph 1 of Mr Reynolds' written submissions:
Date
Description
31 October 1996
The applicant, a citizen of India, arrives in Australia.
18 December 1996
The applicant applies for a protection visa.
14 June 1997
Protection visa refused by a Departmental delegate.
30 June 1997
Applicant applies for Refugee Review Tribunal ("RRT") review of delegate's decision.
17 August 1998
RRT affirms decision of the delegate refusing the grant of a protection visa to the applicant.
23 April 2004
Applicant lodges an application with the Federal Magistrates Court of Australia for review of RRT decision.
5 August 2004
First directions hearing before Registrar Tesoriero. Chandra Jayawardena, solicitor, appears for the applicant. He informs the Court that he is only representing the applicant for the directions hearing. The Court orders that the matter be listed for a call-over on 20 January 2005.
20 January 2005
Applicant fails to attend call-over. The matter is dismissed by Registrar Hedge pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
14 February 2005
Application for reinstatement and supporting affidavit filed on behalf of the applicant by Mr Jayawardena seeking to set aside the orders made on 20 January 2005. In his affidavit the applicant states:
"I am the Declarant abovenamed and the applicant in this matter. I agree that on 5/09/04 when the first directions hearing was held Mr Chandra Jayawardena, solicitor appeared on my behalf. After that hearing Mr Jayawardena told me that my next call over date would be on 21/01/2005 and to contact him one week before.
In late November 2004 Mr Jayawardena reminded me of the case and told me that he is going to Sri Lanka and will be back on 14/01/05 after his daughter's wedding in Colombo. He said he will appear in Court on 21/01/2005. Unfortunately, Mr Jayawardena could not attend Court on 21/01/2005 and my case had been dismissed. I beg this be re-listed."
An issue arose this morning whether the applicant should be required for cross-examination on his affidavit. A practical difficulty was that it had not been possible to arrange an interpreter for the purposes of that cross-examination. As I pointed out to Mr Reynolds, for the Minister, where an applicant in migration proceedings is legally represented the Court will not in the ordinary course arrange for an interpreter to be present. Where an applicant is legally represented and one or other of the parties requires an interpreter it should be the responsibility of that party to arrange for an interpreter. In this instance Mr Reynolds made a request to the Court for an interpreter to be arranged but it did not prove possible in the time available to do so by 10.15am this morning when this matter was heard. As matters turned out, I indicated to the representatives that I did not consider that the application for reinstatement could succeed even if the applicant's affidavit was accepted in its entirety. I took into account in indicating that view the matters put to me by Mr Jayawardena from the bar table which corroborated what the applicant says in his affidavit.
As I have already noted, the judicial review application was dismissed by Registrar Hedge on 20 January 2005 when the applicant failed to appear. That was the second directions hearing in these proceedings. The first directions hearing was conducted on 5 August 2004 and on that occasion Ms Crawley appeared for the Minister and Mr Jayawardena appeared for the applicant. According to the bench sheet prepared by Registrar Tesoriero on that occasion, Mr Jayawardena indicated to the Court that he was only instructed to appear for the applicant for the purposes of the first court date directions on that day. A number of orders were made by consent on that day, including order 4 that the matter be listed for callover at 11.30am on 20 January 2005. Plainly, Mr Jayawardena was aware of that consent order and had an obligation to inform his client of the court fixture should he not be able to represent the applicant on that occasion.
Both the applicant and Mr Jayawardena tell me that it was arranged between them that Mr Jayawardena would represent the applicant at the time of the callover. The applicant seems to have been under the impression that the callover would be on 21 January 2005 but the order made by Registrar Tesoriero is clear on its face. Mr Jayawardena told me that he had accepted instructions from the applicant to represent him at the callover but he had left his diary overseas when he travelled to Sri Lanka for family reasons. Mr Jayawardena accepts that the failure of the applicant to be represented on 20 January was his fault and was the result of him inadvertently overlooking the directions date.
The facts as presented, even accepting them in their entirety, do not in my view give sufficient reason for the Court to vacate the dismissal order made by Registrar Hedge. While the circumstances are unfortunate for the applicant they come about as a result of neglect or default by his solicitor.
Mr Jayawardena should have filed a notice of appearance following the instructions from the applicant to represent him at the callover. He did not do so until 14 February 2005 at the time the reinstatement application was filed. Mr Jayawardena should also have ensured that the applicant was represented at the callover on 20 January 2005 or attended himself. He did not do either. There is in those circumstances nothing exceptional warranting the vacation of the Court's dismissal order.
Even if those circumstances had provided justification for the vacation of that order it would be necessary to have regard to the question of whether the judicial review application raised a serious question to be tried. In my view it did not. The judicial review application took issue with a relocation finding made by the presiding member. That is all it did. It is plain from the findings and reasons of the RRT, in particular on pages 68 and 69 of the court book, that the presiding member found that the applicant had not been persecuted in Punjab in the past and would not be persecuted in the future. The presiding member seems to have not been in any doubt in making those findings. In those circumstances it was unnecessary for the presiding member to make any finding on relocation and I regard his reasons on that issue as surplusage. Whether or not the relocation finding is infected by any error, even any jurisdictional error, makes no difference.
I will therefore dismiss the application for reinstatement filed on 14 February 2005.
The remaining question is who should bear the costs of that application and whether any further order should be made in relation to the costs of the dismissed judicial review application. Registrar Hedge ordered that the applicant pay the respondent Minister's costs of the judicial review application, fixed in the sum of $1,300. Mr Reynolds sought an order for costs in respect of the present reinstatement application fixed in the sum of $1,800 upon the basis that the Minister's solicitor and own client costs were in the region of $3,000. I accept that $1,800 has been reasonably and properly incurred on a party/party basis on behalf of the Minister in dealing with the reinstatement application.
Useful written submissions have been prepared on behalf of the Minister and Mr Reynolds appeared today at a hearing of approximately one hour. Mr Jayawardena generously told me that he would consent to an order that he pay the Minister's costs of the reinstatement application pursuant to rule 21.07(4)(b) of the Federal Magistrates Court Rules. I noted in discussing that issue with Mr Jayawardena that an issue might subsequently arise concerning his potential liability in relation to the earlier costs order made by Registrar Hedge. Mr Reynolds indicated that he would wish to take instructions on that issue.
Given the circumstances it is in my view appropriate that I should give both parties time to consider their position and, if they wish, to make a further application that Mr Jayawardena pay the costs that the applicant was required to pay by Registrar Hedge's order.
I will order that the reinstatement application filed on 14 February 2005 is dismissed and that Mr Chandra Jayawardena shall pay the Minister's costs and disbursements of and incidental to that application, fixed in the sum of $1,800. The applicant and the Minister have liberty to apply within 21 days for an order pursuant to rule 21.07(4)(c) of the Federal Magistrates Court Rules that Mr Chandra Jayawardena pay the costs that the applicant is required to pay pursuant to order 2 made by the Court on 20 January 2005.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 June 2005
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