SZEHH v Minister for Immigration
[2005] FMCA 1692
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEHH & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 1692 |
| MIGRATION – Practice and Procedure – application for judicial review of Refugee Review Tribunal decision – applicant’s claim that Notice of Discontinuance previously filed was due to misunderstanding – application for Notice of Discontinuance to be set aside – opposition to setting aside of Notice of Discontinuance. |
Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
| Applicants | SZEHH & SZEHI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2668 of 2004 |
| Delivered on: | 22 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicants
| Advocate for the Respondent: | Ms C Gray |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 6 October 2005, seeking to set aside a previous order of this Court granting leave to file a Notice of Discontinuance, is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2668 of 2004
| SZEHH & SZEHI |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 6 October 2005, the applicants move the Court for orders seeking to set aside previous orders of this Court. On 29 August 2005 the applicants sought leave to file a Notice of Discontinuance which was granted and the application was dismissed with costs.
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 26 August 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
11 May 2001 and handed down on 1 June 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on 12 December 2000 to refuse to grant the applicants protection (Class XA) visas. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
The applicant husband, his wife and two children in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been given the pseudonyms “SZEHH” (applicant husband) and “SZEHI” (applicant wife).
The Court has power to set aside a Notice of Discontinuance pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) as part of its inherent power to prevent injustice if the circumstances are made out: Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050 per Mansfield J at [5]; Applicant NACT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 316 per Jacobson J at [4].
The applicants were at all times legally represented in their proceedings and there is no dispute that the applicants’ legal representative was instructed to discontinue the proceedings: Affidavit of [SZEHH] sworn on 5 October 2005.
Applicant to set aside orders
The relevant background information in respect of the application currently before this Court is set out in the written submissions prepared on behalf of the respondent by Ms C Gray and I adopt paragraphs 7, 8, 9 and 12 of those submissions for the purpose of this judgment:
The applicant seeks to set aside the orders of Lloyd-Jones FM on the basis that the primary applicant was depressed.
On 5 October 2005, the applicant wife swore an affidavit that was witnessed by her former solicitors. It asserts that the notice of discontinuance was filed and that was a completely wrong decision. Those vague assertions are not a reason for setting aside the notice of discontinuance. The applicant wife also asserted that her husband was going through “some depressed stage of mind” and undergoing medical treatment for depression and anxiety.
On 5 October 2005, the applicant also swore an affidavit that was witnessed by his former solicitor stating that he instructed his solicitor to file a notice of discontinuance but he was depressed and did not know what to do. Attached to the applicant’s affidavit is a “report of psychological assessment” (“the report”) dated 1 October 2005.
The applicant also seeks to set aside the orders of Lloyd-Jones FM to enable him to provide the Court with an amended application. The applicant in his affidavit vaguely asserted that he wanted to put on a fresh application for judicial review as he had a lot to say and his family has been through a difficult period in Fiji. The applicant filed an amended application on 30 December 2004. He had ample time to bring forward any legitimate claim and to inform the Court and the respondent of the nature and evidential basis for his claims. At no time has the applicant provided particulars of any legal error in the decision of the Tribunal, although he was legally represented and only sought to discontinue his proceedings within 14 days of the date scheduled for hearing.
In the application filed on 6 October 2005 the applicants indicate the procedural orders sought as:
1.Set aside the order made by the Federal Magistrate Court on 30 August 2005 on the basis that I was depressed. Medical report provided (enclosed). I was medically unfit.
2.To be given an opportunity to pursue an Amended application order. (Errors included)
The application was accompanied by an affidavit of the applicant wife [SZEHI] in which she states:
1.I am one of the Applicant in a Judicial Review Application Ref: SZ2668. Notice of Discontinuance was filed in August 2005 and that was completely a wrong decision and that time by husband was going through some depressed stage of mind.
2.My Husband [SZEHH] has been undergoing medical treatment for depression and anxiety. (Errors included)
Attached to the affidavit is a report by Dr Salu Dean, Consulting Psychologist, Pain Management Specialist. The report is headed “Report of Psychological Assessment” and is an assessment of both the applicant husband and applicant wife. The report sets out a history of the family movement to Australia and the difficulties they are experiencing with immigration authorities. The findings of the report are:
Diagnosis
After my assessment and research of all of these depressive symptoms, including decreased interest, decreased energy, loss of sleep, low self esteem, agitation, phobia and along with difficulty in being able to concentrate and completing tasks shows that [SZEHH] and [SZEHI] are suffering from Generalized Anxiety Disorder.
Prognosis
[SZEHH] is suffering from diabetes and his physical and psychological conditions have to be closely monitored in the future before it can cause further psychological damages and problems.
If [SZEHH] and [SZEHI] are now allowed to remain in Australia it will separate the whole family and relations which will create further psychological problems for everyone.
[SZEHH] and [SZEHI] will require ongoing psychological contact for a short period to help overcome their condition.
In my opinion if [SZEHH] and [SZEHI] are allowed to remain in Australia they will not be a burden on the Australian society and system because they have very good support from their immediate families in Australia.
The applicant wife’s affidavit sworn on 5 October 2005 was witnessed by her former solicitors. On 6 October 2005 the applicant husband also swore an affidavit that was witnessed by his former solicitors stating that he had instructed his solicitor to file a Notice of Discontinuance but he was depressed and did not know what to do.
The medical report was prepared more than one month after the Notice of Discontinuance was filed. No individual assessment of the applicants appears to have occurred. Both the applicant husband and applicant wife were assessed together and given a general diagnosis that they were suffering from generalised anxiety disorder. The report does not indicate on what basis Dr Dean concluded the applicants suffered from generalised anxiety disorder. It randomly lists symptoms associated with the disorder but not specifically with either of the applicants suffering from them. The report does not provide any information about the applicants’ capacity to give instructions to their solicitor at the time they discontinued their proceedings.
Even though the report asserts that the applicants were depressed there was no medical evidence they were at the time they discontinued the proceedings. Further, even if they were depressed, there was no evidence to suggest that the condition affected their capacity to provide proper instructions to their solicitor.
The other issue raised in the application is a request that the applicants be provided with an opportunity to file an amended application. The applicants vaguely assert that they want to put on a fresh application for judicial review as they had a lot to say and their family had been through a difficult period in Fiji. The solicitor for the respondent submitted the applicants filed an amended application on 30 December 2004 and that they have had ample time to bring forward any legitimate claim and inform the Court and the respondent of the nature and essential basis of their claim. At no time have the applicants provided particulars of any legal error in the decision of the Tribunal, although they were legally represented and only sought to discontinue the proceedings within fourteen days of the date scheduled for hearing. The respondent submitted there would be no utility in permitting the applicant to seek further review of the decision of the Tribunal. The Tribunal’s decision was based on the absence of material bringing the Tribunal to a requisite state of satisfaction and the applicants’ lack of a well founded fear. No jurisdictional error was revealed because the facts that were put forward by the applicants did not cause the Tribunal to be satisfied as to the applicants’ criteria. Relatively, the applicants failed to attend their scheduled Tribunal hearing. There was also an unexplained three year delay between the handing down of the Tribunal’s decision and the commencement of the applicants’ proceedings in this Court.
In correspondence from the applicants on the Court file, the applicants clearly state that they instructed their solicitor to discontinue the proceedings. The respondent should not now be prejudiced by the applicants’ change of mind. Particularly, as they have not provided any evidence establishing that it would be in the interests of justice to set aside those orders.
Reasons
When the application for judicial review was filed on 26 August 2004, the applicants were represented by Mr Vijay Kumar of Gateway Legal Services of 77 Campbellfield Avenue, Bradbury, NSW. The application was prepared and executed by a member of that legal practice. The current status of the applicants’ solicitor is not completely clear as the applicants appeared in person and unrepresented at a directions hearing before this Court on 18 October 2004. The Court file does not contain any Notice of Ceasing to Act from Gateway Legal Services. The Registrar has recorded a note on the orders made on that date that the applicants’ solicitor was not in attendance and had indicated to the respondent’s solicitor that he would not be attending. The applicants advised the Registrar that they had no contact with the solicitor prior to the directions hearing. The matter was set down for final hearing at 10.15 a.m. on 29 August 2005. On
19 August 2005 the applicants’ solicitor, Mr Vijay Kumar of Gateway Legal Services, faxed correspondence to my Chambers which enclosed a Notice of Discontinuance. A further letter dated 29 August 2005 was received, which stated that, due to unforeseen circumstances, no one was available from Gateway Legal Services to attend the final hearing listed in the Court on that date and they requested the matter be dealt with in their absence. The letter referred to the Notice of Discontinuance which was faxed to this Court on 19 August 2005 with a request seeking leave of the Court to file the Notice of Discontinuance. An explanation for the failure to file the Notice of Discontinuance was also provided.
At the hearing on 29 August 2005 leave was granted for the filing of the Notice of Discontinuance and orders to that effect were made. As the correspondence in respect of the Notice of Discontinuance and the Notice itself had been completed by a registered legal practitioner and the signatures of the applicants were witnessed by that practitioner,
I believe the Court was in a position to accept the Notice of Discontinuance and the consequences of filing such a Notice had been adequately explained to the applicants.
The affidavit of the applicant wife filed with the application on
6 October 2005 was witnessed by Mr Vijay Kumar, who was the person identified as the solicitor representing the applicants from Gateway Legal Services. An examination of the Court file does not reveal any notice from the applicants’ solicitor that he has ceased to act in these proceedings. The role of the solicitor and his involvement with the proceedings is unclear. It does appear that there has been an involvement by the firm of Gateway Legal Services at various times during the course of the matter. However, there has been no attempt by the firm of Gateway Legal Services to advise the Court of their continuing involvement or otherwise. Nor have there been any submissions or material prepared on behalf of the applicants in these proceedings which is identified as being provided by Gateway Legal Services. The only exception to this was the original application commencing the proceedings. However, it is apparent that Gateway Legal Services continues to be involved with the applicants to some extent.
After the applicants filed the application seeking the orders of
29 August 2005 to be set aside, the matter was listed for directions on 12 October 2005. The applicants appeared in person at those directions and provided with a timetable indicating the matter was adjourned for hearing until 9 November 2005 at 9.15 a.m. in this Court. Orders were also made requiring the filing of short written outline of submissions and a list of authorities being relied upon by 2 November 2005. Those orders were not complied with.
The applicants forwarded a letter to the respondent’s solicitors dated
7 November 2005 which advised that the applicants were enclosing a “notice of continuance” in the proceedings with the following explanation:
“Please be advised that the reasons we are sending this notice is that we are mentally disturbed and also to continue any further we need a solicitor to represent us and there is not much time left for us to be represented.
We could not file and serve a short outline of submission and authorities associated with it.
We regret that due to unforeseen circumstances we will not be able to be attend the hearing on November 9 and would like the matter be dealt with our absence.” (Errors included)
Attached to that letter was a standard Notice of Discontinuance form which contained the names of the applicant husband and applicant wife and was signed by them and dated 2 November 2005.
The Court has power to set aside a Notice of Discontinuance in its discretion, as part of its inherent powers to prevent injustice: Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs per Mansfield J at [5]. I accept the respondent’s submissions that the Notice of Discontinuance filed on 29 August 2005 had been prepared with the assistance of a legal practitioner and in those circumstances that practitioner was under the obligation to explain to the applicants the consequences of taking that step in any legal proceedings. There is no explanation for the applicants’ subsequent actions in attempting to have the order of 29 August 2005 set aside. The documentation submitted by the applicants in support of their application seeking to set aside is not sufficient to provide the Court with a level of satisfaction that the action taken by the applicant husband was due to his mental condition at that time and that view was shared by the applicant wife who was also a party to the proceedings. Further, no attempt has been made to attend Court at the next scheduled hearing of these issues. The notification of the applicants’ inability to attend the scheduled hearing is inadequate with a request to proceed in their absence. The significant problem with this request from the applicants is that the Court has not been provided with satisfactory explanations for a number of issues in respect of the carriage of this matter. If the applicant husband is suffering from a condition which prevents him from attending Court, although there has been no evidence of this, the applicant wife who is a party to the proceedings could attend to explain to the Court these circumstances surrounding the claim and the application to set aside the Notice of Discontinuance.
Another issue to consider was why the applicants have reinvigorated these proceedings but previously failed to prosecute the matter when the matter was listed for hearing. The most recent absence was explained as “due to unforeseen circumstances” which prevented the applicants from attending the hearing scheduled for today. This explanation does not explain the applicants’ inability to attend nor does it explain the previous absences on essential dates when the matter was scheduled for hearing. The motivation for the reinvigoration of these proceedings may have been to extend the applicants’ stay in the country. My attention has been drawn to the decision of his Honour Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue was canvassed and reference was made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where Driver FM states:
“It would be an abuse of the Court’s process to file an application for review simply for the purpose of extending the period of one’s stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances, there is potential for the Court’s process to be abused by an applicant whose only purpose is to take advantage of that delay.”
Conclusion
In the absence of a satisfactory explanation as to why the initial Notice of Discontinuance was pursued and then subsequently sought to be put aside, again without adequate explanation, I dismiss the application to set aside the orders of this Court made on 29 August 2005.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 November 2005
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