SZEDP v Minister for Immigration (No.2)

[2005] FMCA 573

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEDP v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 573

MIGRATION – Practice and procedure – application for judicial review of a decision of Refugee Review Tribunal decision – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) where applicant did not appear.

Federal Magistrates Court Rules 2001 (Cth), Rule 13.03A(c)
Migration Act 1958 (Cth), s.91X

SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 102
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant: SZEDP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 2489 of 2004

Hearing date: 12 April 2005

Delivered at: Sydney

Orders made: 12 April 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

There was no appearance by or on behalf of the applicant.

Solicitors for the Respondent: Mr J Bird of Phillips Fox

ORDERS

1. The applicant’s Notice of Motion is dismissed.

2. The application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) for default of appearance of the applicant.

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $400.

4. No further application by the applicant to review the decision of the Refugee Review Tribunal made on 23 June 2004 be accepted for filing except with leave of this Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2489 of 2004

SZEDP

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This matter was brought before the Court as a Notice of Motion by the applicant seeking to have the matter reinstated and was scheduled for hearing on 12 April 2005.  By a previous decision of this Court SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 102 the matter was dismissed. At the time of that hearing the applicant failed to appear. However the substantive matter was considered under the provision of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) pursuant to Rule 13.03A(d). In respect of the current application, the matter was listed as a Notice of Motion scheduled for hearing at 11.15 a.m. but at that time there was no appearance by the applicant.

The matter was delayed approximately fifteen minutes to give the applicant a period of grace should he have been delayed travelling to the Court or experienced some difficulty in locating the Court. The solicitor for the respondent asked for an order dismissing the application in accordance with the Rules on the grounds that the applicant failed to appear. In the circumstances, I considered it appropriate to accede to the application made by the respondent’s solicitor and dismiss the matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my reasons for those orders.

The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 June 2004 and handed down on

   
   

   14 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 10 March 2004 to refuse to grant the applicant a protection visa.

Background

1. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEDP”.

2. The judgment of this Court [2005] FMCA 102 set out the details of this matter and I will not repeat them here except for my findings in paragraph [23] which were in effect a summary of why the matter was previously dismissed:

   “I am satisfied that the applicant in this matter has simply failed to provide the delegate and the Tribunal sufficient information to support his claim.  He has then failed to prosecute the matter further by not identifying or particularising the nature of his claim against the Tribunal’s decision.  I am satisfied that the applicant was provided with the opportunity to obtain free legal advice offered in the RRT Pilot Advice Scheme (NSW).  However, this offer was declined.  On two key occasions when the applicant was required to attend the Tribunal hearing and the matter in this Court, there was non appearance without explanation or any subsequent request to be given an opportunity for a new hearing.”

Notice of Motion

1. On 7 March 2005 the applicant filed an application which contained the following three statements under the “Interim or Procedural Orders Sought” section of the application:

   “Due to the translation’s problem, I lost the change to seek legal advice on my appeal, so the judgement is not fair and I can’t go to the hearing because I did not got the advice.

   On 17 May 2004, the letter from RRT was returned, so I lost the change at hearing but I still live at the same address.  I’m seek a way to find out the reason, so the RRT decision should be set aside.”    (Errors in original)

2. Filed with the applicant’s application was an affidavit which contained two brief statements:

   “1.I like to seek a legal advice before hearing and good translation.

   2.An order for hearing at RRT.”

3. The application and affidavit did not make any direct statement that the applicant wished the matter to be reinstated after it had been dismissed by me previously on 17 February 2005.  However, as the applicant was a self represented litigant not familiar with the English language or the operation of the legal system, the Court must independently consider whether an arguable case based on the material could be made out:  Yo Han Chung v University of Sydney & Ors.

4. I have taken the view that the applicant was seeking an order permitting the reinstatement of the matter on the assumption that it was previously dismissed for his non appearance at the scheduled hearing.  This was not correct.  However, the Registry accepted the matter as an application for reinstatement and the respondent’s solicitors prepared an outline of submissions also based on that assumption.

Reasons

1. This matter was listed for hearing at 11.15 a.m. but did not immediately proceed at that time because there was no appearance by the applicant.  The matter was called before me at 11.30 a.m. and an instruction was given to my associate to call the matter three times in the Court precinct.  However, there was no appearance by the applicant.

2. In the circumstances, it seemed appropriate in the absence of the applicant that I should dismiss the application pursuant to Rule 13.03A(c) of the Rules which provides for the dismissal of an application in default of appearance of a party. The applicant does not lose any substantive rights by this dismissal. He is entitled to apply to the Court to set aside or vary the orders if he wishes to do so. It is a matter of discretion whether or not the Court will set aside or vary the orders.

3. As this matter had been dealt with and dismissed by the Court previously and the current application has been dismissed as the applicant failed to appear, I made a further order that before any further filings in respect of this matter are accepted they should be returned to this Court for determination to clarify the applicant’s intentions in respect to reinstatement.

4. I have been requested by the solicitors for the respondent to make an order for costs in this matter and I indicated I would.  That order, of course, forms part of the orders which the applicant, if he chooses, can apply to have set aside.  I therefore order that the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  3 May 2005