SZDUV v Minister for Immigration - [2006] FMCA 981

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDUV v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 981

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – applicant claims political persecution in Nepal – judicial review application dismissed – applicant failed to appear at directions hearing.

PRACTICE AND PROCEDURE – Motion for reinstatement of judicial review application – whether sufficient information advanced for non-appearance of the applicant – application for reinstatement dismissed.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03(2)(b), 16.05(2)(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 483A

Ponnuswamy v Australian Electoral Commission [2002] FCA 1086
SAAP v Minister for Immigration [2005] HCA 24

Applicant:

SZDUV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1787 of 2004

Judgment of:

Lloyd-Jones FM

Hearing date:

6 July 2006

Delivered at:

Sydney

Delivered on:

9 August 2006

REPRESENTATION

Advocate for the Applicant:

Mr M Newman

Solicitors for the Applicant:

Newman & Associates

Advocate for the Respondents:

Ms C Gray

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent is amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 23 December 2005 seeking orders made on

1 February 2005 to be set aside is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1787 of 2004

SZDUV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application filed on 23 December 2005 seeking an order to have the orders made by this Court on 1 February 2005 set aside. I will treat the present application as an application made pursuant to r.16.05(2)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), seeking to vary or set aside an interlocutory order of this Court.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 10 June 2004, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 22 April 2004 and handed down on

18 May 2004, affirming a decision of the delegate of the first respondent made on 8 December 2003, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZDUV”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
In these proceedings the respondents’ solicitors filed and applied for an affidavit of Catherine Jane Gray, sworn on 31 January 2005 (affidavit of Ms Gray) to be admitted into evidence.
For the purposes of this application, the applicant (SZDUV) filed and applied for his affidavit sworn on 22 December 2005 (“the affidavit of the applicant”) to be admitted into evidence.

Background

The Tribunal decision of C Keher, reference N04/48130, provides the following background material. The applicant, who claims to be a citizen of Nepal, arrived in Australia on 13 November 2003. On

4 December 2003, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On

8 December 2003, a delegate of the Minister refused to grant a protection visa and on 6 January 2004, the applicant applied to the Tribunal for review of that decision.(Court Book (“CB”) 53)
In his original visa application, the applicant claimed he was born in 1969 and is a married man. He arrived in Australia on a temporary Business Visa obtained from the Australian High Commission in New Delhi. The applicant claims he was from Bhandara Village in Chitwan and had been educated there for 13 years until 1990. He states that he was a farmer and also to being the owner of a shop. His wife and two children remain in Nepal. He claims he belonged to the Nepali Students Union which is associated with the Nepali Congress Party. The military would come to his village looking for Maoists and the applicant claims he was arrested by the military on 17 November 2002 on suspicion of protecting Maoists in the village. During his detention he gave the names of two Maoist leaders in the village. After his release, the Maoists came to his shop and threatened him. When the applicant was away from his village visiting a sick aunt, the military attacked a Maoist meeting in the village and killed two of its leaders. This resulted in the Maoists suspecting that he had given information to the police. The Maoists went to the applicant’s shop, destroyed it and attacked his father. His family told him to leave the village and the applicant went to Kathmandu to his mother’s home. He claims that the Maoists went his house from time to time and harassed his family and threatened to kill him.(CB 57-58)

Reasons

This matter was originally listed before Registrar McIllhatton on

17 September 2004 for first directions. The Court file contains a notice of appearance completed by Mr Newman by hand and filed in Court on the same date. The following order was made by consent:
1.The applicant file and serve an amended application giving complete particulars of review relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely by 28 October 2004.
This order was not complied with.
On 11 November 2004, the respondents’ solicitors, Sparke Helmore, wrote to Newman and Associates referring to the orders made by Registrar McIllhatton on 17 September 2004, indicating they had not received the amended application and consequently were taking steps to have the matter listed in a non-compliance list before this Court. The respondents’ solicitors would seek to have the matter summarily dismissed due to non-compliance.
Sparke Helmore approached the Court Registry seeking a listing date and the matter was listed for directions on 1 February 2005 at 10.15am. On 25 November 2004, Sparke Helmore wrote to Newman & Associates informing them that the first order made by Registrar McIllhatton on 17 September 2004 had not been complied with and that the matter was listed in a non-compliance list so that the respondents could apply to have the matter summarily dismissed pursuant to r.13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). Newman and Associates were advised of the time, date and location of the hearing and that an appearance for the applicant was required. If the applicant did not appear, the respondents would seek that the matter be dismissed with an order for costs for the first respondent.( affidavit of Ms Gray, annexure B)
On the allocated directions date and despite a period of grace of 15 minutes, there was no appearance by or on behalf of the applicant. In the absence of the applicant, I dismissed the matter pursuant to r.13.03A(c) of the Rules, which is dismissal of the application for default of appearance of a party. The applicant did not lose any substantial rights by the dismissal and was entitled to apply to the Court to set aside the orders if he wished to do so, pursuant to r.16.05(2) of the Rules.
On 23 December 2005, the applicant filed an application seeking interim orders to set aside the orders of the Court made on 1 February 2005. On the same date, the applicant also filed an affidavit (see [6] above), which sets out a brief explanation for his failure to file an amended application and also repeats his claims for protection.
The matter was listed for 13 April 2006 at 12.30pm, but this was adjourned to 8 May 2006, and again to 6 July 2006.
The test to apply in determining whether to allow an application to set aside previous orders of the Court is set out in Ponnuswamy v Australian Electoral Commission [2002] FCA 1086 (“Ponnuswamy”). In that decision, Hely J approved the approach of Driver FM. Federal Magistrate Driver refused an application made pursuant to r.16.05(2)(c) of the Rules to vacate an order dismissing an application for non-appearance of the applicant on the basis that:
a)The explanation provided by the applicant for failing to attend the hearing was neither sufficient nor plausible;
b)The applicant failed to contact the Court to advance or secure any adjournment; and
c)The application if reinstated, did not have a reasonable prospect of success.
Mr Newman, appearing for the applicant, filed written submissions on on 28 June 2006. In those submissions, Mr Newman provided a brief history of the applicant’s claims and then made submissions as to the substantive application’s likelihood of success based on the background information, which details the Maoist insurgency in Nepal. Annexed is background information extracted from BBC News, which details the current situation in Nepal and contains a substantial list of references to articles on the topic. Mr Newman also made oral submissions as to how he has obtained the background information and how it supported the applicant’s claim.
Mr Newman did not provide any explanation as to why the applicant had failed to attend the hearing 1 February 2005, nor was there explanation for the 10 month delay between the making of the orders dismissing the application for non-appearance and the reinstatement application. I raised a number of anomalies in respect of documents filed and Mr Newman’s role in this matter. The original application seeking review was signed and filed by the applicant with no reference to Newman and Associates. However, at first directions Mr Newman appeared on behalf of the applicant when Registrar McIllhatton made the original orders.
The application seeking to set the orders aside filed on 23 December 2005, again signed by the applicant, contains no reference to Newman and Associates. Filed at the same time is an affidavit of the applicant dated 23 December 2005, with the following statement:
My application appears discontinued by the Federal Magistrates Court before the hearing of the application because I could not meet the deadline of the documentations that I needed to provide to the Court due to no Lawyer and due to lack of my funding ability I could not provide it in time.
I am applying for the Lawyer with the RRT Legal Assistance Scheme now. I can also provide amended application to the court.
The balance of the affidavit repeats the applicant’s claims, which are the basis of his protection visa application.
At first directions the matter was listed for final hearing on 11 April 2005 at 2.15pm. On 8 April 2005, a brief outline of submissions on behalf of the applicant was forwarded to my Associate by facsimile. These submissions were prepared by Newman and Associates and signed by Mr Newman as the applicant’s solicitor. My Associate entered a file note attached to those submissions, that she had contacted Mr Newman and informed him that the matter had been dismissed for non-compliance on 11 February 2005. The final hearing dated 11 April 2005 was vacated. Mr Newman informed my Associate that he had been retained on 7 April 2005. There is nothing on the Court file to show that Mr Newman ceased to act for the applicant at some time after the directions date of 7 September 2004, nor is there documentation indicating his reappointment on 7 April 2005.
During this interim period and in the absence of contrary advice or relevant correspondence, all Court documents and correspondence in respect of this matter was addressed to Newman and Associates. Despite the conversation with my Associate on 8 April 2005, there has been no action on this matter until the filing of the application on

23 December 2005. The application filed on 23 December 2005 again makes no reference to Newman and Associates, with the next involvement of that organisation reflected in the outline of submissions on behalf of the applicant filed on 28 June 2006. When these inconsistencies were pointed out to Mr Newman, he was unable to offer any explanation other than offering to file any necessary documents by close of business on 7 July 2006. I am not satisfied that any plausible explanation has been provided in respect of the carriage of this matter, nor has there been sufficient explanation of the substantial delay between the making of the original orders and the application for reinstatement.
I am satisfied that the appropriate notices in respect of the listing of this matter in the non-compliance list were forwarded by the respondents’ solicitors. I am also satisfied that Newman and Associates became aware of the orders made in this Court on 1 February 2005 through subsequent correspondence from the respondents’ solicitors and discussion with my Associate as detailed at [20] above. However, despite this, no action was taken to set aside the previous orders until 23 December 2005, which was filed by the applicant with no reference to Newman and Associates.
The third criterion in Ponnuswamy to be determined is if the application were reinstated, would it have a reasonable prospect of success. The original application to this Court does not identify any ground of review, nor is there a supporting affidavit with grounds. In that application under the heading ‘Final orders sought by the applicant’, the following statement appears:
I seek the orders from the Court to reassess my application for protection visa by RRT according to the law, as members (RRT) view on relocation within the country is not a safe relocation as the whole country is crippled by rebel activities, I need a safer place.
As indicated above, the applicant did not comply with the order to file an amended application setting out grounds of review and any evidence relied upon.
Newman and Associates filed two outlines of submissions in these proceedings, both of which address the issue of relocation. The submissions state that the applicant is not able to secure protection for himself in any legitimate way. It is alleged that the Tribunal misunderstood the nature of the internal flight principle and for “this reason alone the matter should be remitted.” The only evidence and submission made by Mr Newman on behalf of the applicant is the location of alternative sources of country information, which report on the activities of Maoists rebels in Nepal. With respect, I do not believe that this establishes a ground of review, nor does it establish that the reasoning procedures of the Tribunal were incorrect, resulting in jurisdictional error.

Conclusion

I am satisfied the criteria in Ponnuswamy are satisfied to the extent that the application to set aside the orders of this Court of 11 February 2005 be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 3 August 2006