SZEJZ v Minister for Immigration - [2005] FMCA 1136

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEJZ v MINISTER FOR IMMIGRATION

[2005] FMCA 1136

MIGRATION – RRT – application to set aside dismissal for absence from the hearing – no sufficient explanation for absence – futile to revive application – interlocutory application dismissed.

Migration Act 1958 (Cth), s.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZEJZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2817 of 2004

Judgment of:

Smith FM

Hearing date:

1 August 2005

Delivered at:

Sydney

Delivered on:

1 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms O Mak

Solicitors for the Respondent:

Clayton Utz

ORDERS

The applicant’s interlocutory application filed on 28 June 2005 seeking orders under R.16.05(2)(a) is dismissed.
The applicant must pay the respondent’s costs in the sum of $1000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2817 of 2004

SZEJZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The substantive application in this matter was lodged on behalf of the applicant on 14 September 2004 by solicitors, Edmund Teng & Associates. The application sought orders under s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal handed down on 25 August 1998. The Tribunal affirmed a decision of a delegate taken on 4 July 1997 to refuse the applicant a protection visa.
The application was returnable before me at a first court date on

28 September 2004. The applicant’s solicitor, Mr Teng, appeared on his behalf. He signed short minutes of order, which listed the matter for final hearing at 10.15am on 25 May 2005 and gave directions for the preparation of the matter.
On 8 December 2004, Mr Teng filed a notice of ceasing to act, and an affidavit sworn by him on the same day. This attached a letter dated

30 September 2004 sent to the applicant at an address in Campsie which Mr Teng said was “the last known address of the applicant”. The applicant has today confirmed that he lived at that address until April of this year. The solicitor’s letter was in English but clearly had the solicitor’s letterhead and a headings indicating the importance of the letter and its relevance to the applicant’s current court proceeding.
The letter informed the applicant of Mr Teng’s appearance at the direction hearing, and enclosed the short minutes of order and a map showing the venue of the final hearing which was clearly appointed in those directions. The letter said:
Please note that an amended application is required to be filed by 3 December 2004 and we suggest you further seek legal advice in relation to this matter should you continue with this action.
Finally, we will be filing a Notice of Ceasing to Act in the above proceedings after seven (7) days of you receiving this letter.
You are advised that if you do not appoint another solicitor or file and serve a notice of address for service within 7 days, you may not be served with documents in the proceeding.
The applicant has presented no evidence to explain why that letter would not have come to his attention. I accept his statement that he does not read English. However, he has been present in Australia for six years and has told me that he has friends who translate English letters to him. I cannot understand why he would not have had this letter and the enclosed short minutes read to him. I am not persuaded that he was not properly notified as to the time and place where his application was listed for final hearing.
The matter was listed for final hearing, as appointed, on 25 May 2005. The applicant did not appear and had made no communication to the Court nor to the respondent seeking an adjournment. He had filed no documents as directed. In all the circumstances, including the merits of the matter to which I shall refer to below, I considered it appropriate to dismiss the application under rule 13.03A(c) of the Federal Magistrates Court Rules based on his absence from the hearing.
On 28 June 2005 the applicant filed an application, in effect, seeking an order setting aside that order. An affidavit filed at the same time said merely:
As I changed my home address and missed the letter for hearing from Federal Magistrates Court, then it closed my case. Actually, I informed Immigration that I changed my address.
As I have indicated above, the applicant told me that, contrary to this affidavit, he was still living at the address to which Mr Teng wrote to him long after that letter would have reached him. He has made no suggestion that at any time he sought to discover from Mr Teng or the court what was happening in his matter. He has not claimed that he ever did anything to ensure that the Court or the respondent knew of his new address.
On all the evidence before me, including what the applicant has told me from the bar table today, I am not satisfied that he has an explanation for his absence from the appointed hearing sufficient to cause me to set aside my previous order.
Moreover, for the following reasons I consider that the applicant’s substantive application in this Court is hopeless and that it would be futile for me to allow the applicant to revive his application.
The applicant’s visa application lodged on 13 September 1996 attached a short statement which claimed a fear of persecution in China on the ground of belonging to a Christian group called “Shouting Group”.
The delegate in a decision, which was sent to the applicant and his agent who had helped him in the application, clearly indicated that he did not regard the applicant’s claims to be credible. The delegate’s reasons include the following:
On 18 June 1997 the applicant was invited to attend an interview on 1 July. The applicant was given until 26 June 1997 to confirm his attendance at this interview and advised that if he did not do so the interview would be cancelled. The applicant failed to confirm his attendance at an interview. On 26 June 1997 the applicant’s agent rang and stated that the applicant may have moved address, and requested an extension of time in which to contact his client. The applicant’s agent was given until 3 July 1997 to contact his client and provide a new address to the department. On 4 July 1997 the applicant’s agent rang and stated he was unable to contact his client. The applicant’s agent stated he had no objections to the department continuing to process the applicant’s case, as he was unaware of the applicant’s whereabouts.
The applicant’s application for review by the Tribunal was filed on

1 August 1997. He indicated that he was still employing the same agent, and he directed that: “all correspondence relating to my sponsorship - application is to be sent to the above”. The agent subsequently notified a new residential address for the applicant.
On 24 July 1998 the Tribunal sent to the applicant at his new address and to his agent at the agent’s address, an invitation to attend a hearing on 25 August 1998. No response was received before the hearing date, and the applicant did not attend. The Tribunal said in its decision dated 25 August 1998:
I am satisfied that the Tribunal has discharged its obligation to provide (the applicant) with the opportunity to give oral evidence and he has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal.
The crux of the Tribunal’s decision was:
(The applicant) has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. In the circumstances, I cannot be satisfied, on the evidence before me, that (the applicant) has a well-founded fear of persecution within the meaning of the Convention.
In my view, the procedures followed by the Tribunal and its reasoning were plainly open to it, and I can see no arguable ground of jurisdictional error affecting its decision.
The original application filed in this Court by the applicant’s solicitor did not attempt to identify even a general head of jurisdictional error, but merely contained assertions that the applicant was a refugee. As well as lacking proper grounds for review, the application was not accompanied by any evidence to explain the six years delay between the Tribunal decision and the application in the Court. As I have indicated, no amended application nor further evidence in support of the application was subsequently filed pursuant to the directions of the Court.
The applicant has today presented nothing to suggest that he might have an arguable case with any merit.
In all the above circumstances, in my opinion the proper exercise of the Court’s discretion to set aside the previous default order requires that the order should not be set aside. I therefore propose to make orders dismissing the interlocutory application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 16 August 2005