FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEMJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 913 |
| MIGRATION – Refugee – application for reinstatement pursuant to Rule 16.05 – lack of utility on reinstatement – no prospects of success – unwarrantable and unexplained delay – request pursuant to s.417 not sufficient to explain delay – application dismissed. |
| Migration Act 1958, ss.417, 422B, 422A, 424A(2), 441A, 424A(1), 424A, 424A(3), 430, 424, 439, 440, 476(1),351 Migration Legislation Amendment Act (No.1) 1998 Federal Magistrates Court Rules 2001, rr. 16.05, 13.03A(c), 16.05(2)(a) |
| Applicant: | SZEMJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2959 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 April 2007 |
| Date of Last Submission: | 20 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. R. White |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The reference…
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Details
- Case
- [2007] FMCA 913
- Decision Date
CaseChat Overview and Summary
In the case of Szemj v Minister for Immigration, the applicant, Szemj, sought to have orders made by the Court on 4 February 2005 set aside. These orders had dismissed her application for review of a decision by the Tribunal dated 29 September 2004. The basis for her application was Rule 16.05(2)(a) of the Rules, as the orders were made in her absence. The court had to consider the circumstances leading to her non-appearance at the hearing, whether there was any justification for this, and if reinstating the application would be futile, especially in light of the significant delay in pursuing the application.
The court examined the reasons provided by Szemj for her absence at the hearing, her explanations for the delay in filing the application, and the potential merits of reinstating the application. Szemj claimed that the political situation in Fiji made it uncertain and that she feared persecution due to her Indian ethnicity. However, the court noted that these concerns did not constitute a valid basis for judicial review as they amounted to impermissible merits review. The court also scrutinised Szemj's involvement in the preparation of her application and affidavit, finding that while she claimed to understand the content, she could not explain certain parts of her affidavit.
The court concluded that despite Szemj's explanation for her absence, the relief sought should be denied. The court found that the applicant had not provided a satisfactory explanation for her non-appearance and that the delay in filing the application was substantial and unjustified. Consequently, the court held that the application to set aside the orders was dismissed.
The final orders included amending the reference to the first respondent to "Minister for Immigration and Citizenship," dismissing the application to the Court made on 2 March 2007, and ordering the applicant to pay the first respondent's costs in the amount of $3100.
The court examined the reasons provided by Szemj for her absence at the hearing, her explanations for the delay in filing the application, and the potential merits of reinstating the application. Szemj claimed that the political situation in Fiji made it uncertain and that she feared persecution due to her Indian ethnicity. However, the court noted that these concerns did not constitute a valid basis for judicial review as they amounted to impermissible merits review. The court also scrutinised Szemj's involvement in the preparation of her application and affidavit, finding that while she claimed to understand the content, she could not explain certain parts of her affidavit.
The court concluded that despite Szemj's explanation for her absence, the relief sought should be denied. The court found that the applicant had not provided a satisfactory explanation for her non-appearance and that the delay in filing the application was substantial and unjustified. Consequently, the court held that the application to set aside the orders was dismissed.
The final orders included amending the reference to the first respondent to "Minister for Immigration and Citizenship," dismissing the application to the Court made on 2 March 2007, and ordering the applicant to pay the first respondent's costs in the amount of $3100.
Orders
Orders of the court
1.
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
2.
The application to this Court made on 2 March 2007 is dismissed.
3.
The applicant pay the first respondent’s costs set in the amount of $3100.
Background
Background to the litigation
I note attached to the Minister’s submissions is a chronology of events which provides a relevant background to the present application:“ BACKGROUND The applicant seeks that orders made by this Court on 4 February 2005 be set aside. On that day, the Court made orders dismissing the applicant’s earlier application to the Court which sought review of the Tribunal’s decision of 29 September 2004. The applicant relies on Rule 16.05(2)(a) of the Rules, as the orders made dismissing her application were made in her absence. The issues for consideration are:1)The circumstances which led to the applicant’s non appearance at the hearing on 4 February 2005 and any explanation for this. 2)The utility of reinstatement of the original application. Even if the Court were to accept the applicant’s explanation for non attendance, would the reinstatement be an exercise in futility. 3)The Minister presses that in relation to the latter issue, the issue of delay is of “critical consideration”. That is, the relief sought by the applicant should in any event be refused given the unwarrantable and unexplained delay by the applicant in these proceedings. At the hearing, the applicant gave evidence, by way of her affidavit of 2 March 2007, and also during cross-examination by Mr. White. Part of the applicant’s evidence (which mirrored submissions made to the Court) was that the political situation in Fiji was “totally uncertain” and that she feared persecution from the “Fiji natives” because of her Indian ethnicity and that protection from the authorities was not available to her. Plainly, these matters, as put, did not rise above a request for impermissible merits review (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259) (“Wu Shan Liang”). The applicant’s evidence, relevant to the issues currently before the Court, was:(1)She was assisted in the making of the application of 2 March 2007 by her uncle, who wrote out the application, but who put in it what she essentially wanted the document to contain.(2)While she received some assistance from her uncle in the writing of the matters contained in the affidavit of 2 March 2004 (“He just helped me a little bit”), that she understood what was in the affidavit and that it was her affidavit.(3)Notwithstanding this evidence, the applicant subsequently was unable to explain the matters contained, in particular, in paragraph 3 of the affidavit, (“I can’t understand”). She then said, that whilst they were her words, she did not understand what they meant.(4)She pursued judicial review of the Tribunal decision soon after the decision was handed down by commencing proceedings in August 2001 in the High Court of Australia. For this purpose, she confirmed that she had retained solicitor Mr. Adrian Joel, although she specifically dealt with a “Mr Naveendra Sahay”.(5)Following the ultimate dismissal of these proceedings in about February 2004, she engaged another solicitor (“Vasso”) for the purpose of making an application to the Federal Magistrates Court (it appears that “Vasso” worked with John B. Hajje and Associates, who filed the original application to this Court on the applicant’s behalf.)(6)She and her husband were assisted by her uncle in paying these solicitors to assist them, and that they spoke to this solicitor about seeking judicial review of the Tribunal’s decision.(7)She and her husband maintained monthly contact with these solicitors, with her uncle’s assistance, who would sometimes contact solicitors on their behalf.(8)Her solicitors withdrew her application to the Court.(9)She knew “somewhere about” 4 February 2005 that she had missed the hearing and when she asked the solicitor, he told her that her application had been withdrawn from the Court.(10)Following this, she and her uncle took “all my papers and things” and went to see another solicitor.(11)The applicant confirmed that her solicitors acted without her approval or authority to withdraw her case, but she took no action whatsoever in relation to those solicitors to express her dissatisfaction, and simply went to another solicitor.(12)The applicant was unable to explain the 7 month delay between the dismissal in February 2004 of proceedings commenced in the High Court, and the filing of the application in this Court on 29 September 2004 (“I can’t remember what we have done in that time”).(13)She confirmed that the solicitors who acted for her in the matter before the Federal Magistrates Court did not tell her to seek Ministerial intervention. When it was pointed out to the applicant that this was in conflict with what appeared at paragraph 4 of her affidavit, she confirmed that the withdrawal of her case, which was action taken by her then solicitor, was separate to subsequent action taken to seek the Minister’s intervention.(14)Initially the applicant said that this action was taken generally with the assistance of a “Mr. Bharati”. The applicant explained that he assisted with the preparation of documents but did not “use his letterhead”.(15)Subsequently, it emerged that the “first” request pursuant to s.417 of the Act (Respondent’s Exhibit 1) was sent by solicitors, Harish Prasad & Associates, on the applicant’s behalf. (16)Following the unsuccessful response on that occasion, she moved to consult Mr. Bharati. Further, that the second request for Ministerial intervention, although not written on his letterhead, was prepared with his assistance (Respondent’s Exhibit 3). (17)Initially, the applicant gave evidence that the third request for Ministerial intervention was sent without assistance (“Then we start doing our own then”). The applicant, subsequently, gave evidence that this also was prepared with the assistance of “Mr. Bharati”. (18)In relation to the current application before the Court, the applicant was unable to explain why this application was made prior to receiving notification of the outcome of the third request for Ministerial intervention, beyond saying that: “We decided to do our own”, and that: “We appealed it again. We thought maybe there will be any changes.”
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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