SZFAO v Minister for Immigration
[2005] FMCA 436
•8 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFAO v MINISTER FOR IMMIGRATION | [2005] FMCA 436 |
| MIGRATION – Review of Refugee Review Tribunal decision – Notice of Motion seeking an order made by a Registrar pursuant to Rule 13.03A(c) for non appearance at a Directions Hearing be set aside – Notice of Motion dismissed. |
Migration Act 1958 (Cth), ss.91X, 417(1)
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 16.5(2)(a)
Federal Court Rules, O.32 r.2, O.35 r.7
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZFAO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG3236 of 2004 |
| Delivered on: | 8 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mrs E Warner Knight of Australian Government Solicitor |
ORDERS
The applicant’s Notice of Motion filed on 22 December 2004 is dismissed.
The substantive application filed on 2 November 2004 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3236 of 2004
| SZFAO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the applicant as a Notice of Motion seeking the order made by Registrar Tesoriero on 11 November 2004 dismissing the matter pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) be set aside together with a costs order of $300.00 awarded against the applicant at that time. The Rules permit an order to be set aside after it has been entered if the order is made in the absence of a party pursuant to Rule 16.05(2)(a). I believed it was in both parties’ interest to know the future progress of this matter and consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Magistrates Court of Australia on 2 November 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 February 2002, affirming a decision of the delegate of the respondent (“the delegate”) to refuse to grant the applicant a protection visa.
Applicant’s background
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 “SZFAO”.
The matter was dismissed by the Registrar at a directions hearing. There was no order to prepare a Court Book so the documentation regarding the applicant was limited.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 4 December 1998. On 20 September 1999 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Act. On 15 November 1999 the delegate refused to grant a protection (Class XA) visa and on 1 December 1999 the applicant to the Tribunal for a review of the delegate’s decision.
Litigation history
A brief summary of the litigation history of this application is as follows:
a)On 11 March 2002 the applicant filed in the Federal Court of Australia, New South Wales District Registry, an application for a review under s.39B of the Judiciary Act 1903 (Cth). The matter was given the Federal Court proceedings number N190 of 2002 and the applicant was allocated the pseudonym “NAEF”.
b)On 20 May 2002 the matter was listed before His Honour Conti J but there was no appearance by the applicant nor any explanation to the Court for his non appearance. The matter was dismissed pursuant to Order 32, Rule 2 of the Federal Court Rules in the absence of a party.
c)It was noted during those proceedings that the applicant had made an unsuccessful application to the Minister for the exercise of ministerial intervention pursuant to s.417(1) of the Act.
d)Although His Honour Conti J in his judgment indicated that the applicant was able to seek to have the judgment set aside pursuant to Order 35, Rule 7 of the Federal Court Rules there was no material before me that indicated this course had been pursued by the applicant.
e)On 2 November 2004 the applicant filed in the Federal Magistrates Court of Australia an application for review under s.39B of the Judiciary Act 1903 (Cth). The matter was given the Federal Magistrates Court proceedings number SYG3236 of 2004 and the applicant was allocated the pseudonym “SZFAO”.
f)On 11 November 2004 the matter was listed before Registrar Tesoriero for directions and the allocation of a final hearing date. However, there was no appearance by the applicant and consequently the Registrar dismissed the matter pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) and awarded the respondent costs.
g)On 22 December 2004 the applicant filed in the Registry of the Federal Magistrates Court of Australia an affidavit which, in effect, was an application under Rule 16.5(2)(a) seeking to have the orders of 11 November 2004 set aside.
Applicant’s application
The applicant appeared in person with the assistance of a Bengali interpreter. The affidavit filed on 22 December 2004 contained the following two statements:
“1.I am the applicant of the above matter. In the fix direction hearing day I was absent. Because lack of my knowledge.
2.After filing my judicial review application I am waiting to receive later from the Registry regarding the hearing day.
I am unrepresented. I did not attend the direction hearing intentionally.” (Errors in original)
When the applicant was invited to make any submissions in support of his application, he indicated he supported the legal system in Australia but he needed a solicitor with him because he did not understand the documents. He said he was waiting for a letter from the Registry nominating the date for the first directions hearing and it was not his intention to miss Court on that day. The applicant indicated that he experienced financial hardship and could not afford a lawyer. He also indicated he had been in Australia for six years and wished to keep the matter before the Courts alive.
Respondent’s submissions
For the purpose of this Motion, the respondent tendered and applied for an affidavit of Elizabeth Warner Knight sworn on 7 March 2005 (“the affidavit of Mrs Warner Knight”) to be admitted into evidence. The affidavit contained a chronology of the matter, including the previous applications made to the Federal Court.
Reasons
The applicant indicated that he wished to pursue his application before the Court although to date he had done little to demonstrate his desire to prosecute his claim. The applicant had failed to attend both the Federal Court and this Court and provided either inadequate or no explanation for his failure to attend. The date of the directions hearing before Registrar Tesoriero had been provided to the applicant the day he attended the Registry to file his initiating application. There were also long periods of time when it appears the applicant took no action to confirm his status as a legitimate visa holder in this country.
There were major discrepancies in the applicant’s story regarding the date he arrived in Australia, due partly to his use of different identifies. The finding of the Tribunal was summarised in their conclusion that “the applicant’s claims are greatly lacking in credibility”.
Where an applicant is self represented 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. The extended periods of no activity and the long delays between the ruling of the Courts and the subsequent response of the applicant do not demonstrate any keenness or enthusiasm on the part of the applicant to pursue his status in respect of obtaining a permanent visa. The action taken by the applicant only appeared to occur at the very last moment when forced to do so. When proceedings are commenced, no further action is taken by the applicant to carry through with the requirements of the Courts’ timetables. The applicant appears to be unable to give any explanation for these delays.
Conclusion
Although the applicant has taken steps to have the previous orders in this matter set aside and has attended the hearing, he has been unable to give any reasons why his application should be upheld. He has not been able to satisfactorily explain the significant delays and complete inactivity in pursuing the substantive application. If the applicant was provided with a further opportunity in which to prosecute his claim,
I am unconvinced that he would substantially change his attitude and comply with the Court orders. Consequently, the application for the setting aside of the orders made on 11 November 2004 is not upheld and the substantive application filed on 2 November 2004 should be dismissed.
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 fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 15 April 2005
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