SZFFM v Minister for Immigration

[2005] FMCA 761

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFFM v MINISTER FOR IMMIGRATION [2005] FMCA 761

MIGRATION – Application to set aside orders made in absence of Applicant – whether futile to set aside orders.

Migration Act 1958, ss.425, 426

Taylor v Taylor (1979) 143 CLR 1

Applicant: SZFFM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3619 of 2004

Judgment of: Barnes FM

Hearing date: 20 May 2005

Delivered at: Sydney

Delivered on: 20 May 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application to set aside orders made dismissing the application for review of a decision of the Refugee Review Tribunal be dismissed.

2. That the applicant pay the respondent's costs set in the amount of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3619 of 2004

SZFFM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 3 May 2005 pursuant to Rule 16.05 of the Federal Magistrates Court Rules seeking that an order dismissing the applicant's application for review of a decision of the Refugee Review Tribunal (the Tribunal) be set aside.

2. The background to this application is that on 9 July 2002 the Tribunal handed down a decision affirming a decision of a delegate of respondent not to grant the applicant a protection visa.  The Tribunal reasons for decision record that the applicant did not attend the Tribunal hearing, a matter to which I will return.  The decision was made on the information before the Tribunal.  The applicant sought review of that decision by proceedings commenced in this court on

   
   

   13 December 2004. 

3. In his application the applicant claimed very generally that the decision was made with a pre-set mind; that the decision was made contrary to the definition in the Refugees Convention; that the Tribunal made a legal error and that the Migration Act 1958 was not properly observed.

4. The applicant attended a directions hearing with the assistance of a Hindi interpreter on 23 December 2004, at which time a number of orders were made by consent, including that the applicant file and serve any affidavit and other evidence by 28 February 2005 and that he file and serve an amended application giving complete particulars of each ground of review by 28 February 2005.  Neither of those things occurred.  The matter was listed for final hearing at 10.15am on

   
   

   14 April 2005 before me.  At the time of the directions hearing the applicant was in detention. 

5. The applicant failed to appear on 14 April 2005.  No record exists of any contact by him prior to or at the time of the hearing either with chambers or with the Registry in relation to his non-attendance at the hearing.  
   I made orders that the application be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules by reason of his non-attendance and that the applicant pay the respondent's costs. I also ordered that the respondent notify the applicant of the orders made and of the effect of Rule 16.05(2)(a) of the Federal Magistrates Court Rules.

6. The solicitor for the respondent filed an affidavit in court today to which is annexed a file note recording that on 14 April 2005 at approximately 1pm she took a telephone call from a person who identified himself as the applicant.  The file note records that he informed her that he missed his hearing because he thought it was at 2.15pm.  It also records that the applicant was released from detention on 11 April 2005.

7. On 3 May 2005 the applicant filed an application seeking that the orders dismissing the application be set aside.  An accompanying affidavit states briefly that he was sick on 14 April 2005 and was unable to attend the hearing and that as he was released from detention on Monday 11 April 2005, because of a change of food he was suffering from gastroenteritis.  No other evidence was filed.  However at the commencing of the hearing today the applicant tendered what is described as a ‘Certificate of Sickness’ from a medical practitioner dated 14 April 2005, certifying that the doctor examined the applicant on that day and in his opinion he was suffering from gastroenteritis. 

   
   

   It continued:

   He:  Rest 14/4 and 15/4/05.

8. This certificate does not state that the applicant was unfit to attend court or work or anything to that effect, but does suggest that he ‘rest’.   Also provided to the court was a copy of a prescription dated 14 April 2005 for Imodium.  In these circumstances the applicant seeks that the dismissal of his application be set aside.

9. I asked the applicant today what his complaint was with the Tribunal decision.  He told the court that the Tribunal decision was made in his absence because he changed his address and was not informed by his lawyer.  He complained that he was ill-informed by his former lawyer or migration agent and, indeed, that such person had had his licence cancelled.  He claimed that he was not informed of the hearing and that he moved, although he did not recall when he had moved.  He did not notify the Tribunal of his change of address.

10. The court has power under Rule 16.05 to set aside an order made dismissing an application, relevantly, when it is made in the absence of the applicant. The power is expressed in general terms. It is a discretionary power. It is clear in this case that the respondent does not consent to the orders being set aside and it is therefore necessary for the court to determine whether it is appropriate to exercise its jurisdiction to set aside the orders made on 14 April 2005. The power must be exercised judicially and with caution, although it is not so narrow or exceptional as to be virtually non-existent. An order may be set aside where it is in the interests of justice to do so: Taylor v Taylor (1979) 143 CLR 1. There is authority to indicate that the discretionary power requires the existence of exceptional circumstances. It is normally necessary for the applicant to show that by accident and without fault on his part, he failed or was unable to attend the hearing at the scheduled time. It is also relevant to have regard to whether setting aside the orders would be futile or whether the applicant has an arguable basis for his claim of jurisdictional error.

11. In this instance the applicant's claimed reason for not attending the hearing on 14 April 2005 was that he was sick with gastroenteritis due to the different food he had consumed after his release from detention.  He provided a medical certificate which supports his claim in this respect.  However, there is also evidence from the solicitor for the respondent which indicates that the respondent was confused as to the time of the hearing.  The applicant agreed in submissions from the bar table that this was the case, but claimed that he had failed to draw to the solicitor’s attention the fact that he was also suffering from gastroenteritis.

12. On the basis of the application, the affidavit and the medical evidence, and allowing for some confusion on the part of the applicant as to the time of the hearing, the applicant has provided a reason for non-appearance before the court on 14 April 2005 although he failed to notify the court at that time.  The medical certificate does not expressly state that he was not fit to attend the court on that date and illness was not the reason that he gave the respondent's solicitor.  Nonetheless if the applicant had any prospect of establishing any ground for review of the Tribunal decision, it may be in the interests of justice to exercise my discretion to set aside the orders made on 14 April 2005.  However I consider that setting aside the orders that I made would be futile, as there is nothing before me to establish that there is any arguable case or question raised by the applicant.  In those circumstances, it is not necessary for me to pursue further the inconsistency between the medical evidence the applicant provided to the court and what he told the solicitor for the respondent or to address the question of the sufficiency of the medical certificate as to whether the applicant was fit to attend court on 14 April 2005.

13. In reaching this decision I have had regard to the grounds relied on in the application for review, to what the applicant told the court today and also to what appears in the documents before the court including the Tribunal reasons for decision and the correspondence leading up to the Tribunal decision, to which it is necessary that I make some reference.  First, in relation to the generally expressed grounds for review in the application filed on 13 December 2004: these grounds are unparticularised.  There is no reference to particular aspects of the Tribunal decision.  There is nothing in the material before me to support any claim that there is an arguable case that the decision was made with a pre-set mind.  On the contrary, the Tribunal endeavoured to contact the applicant and invite him to a hearing.  In his absence it proceeded on the material before it.  Nor is there anything to support the general claim that the decision was made contrary to the definition of the Refugees Convention, that the Tribunal made a legal error, or that the procedures of the Migration Act 1958 were not properly observed. In that respect the critical procedure is, of course, the necessary invitation under s.425 of the Migration Act 1958. To some extent the claims that the applicant made today raise the Tribunal's obligation pursuant to s.425 as well as a possible claim of a lack of procedural fairness, albeit not put in those terms. Section 425(1) provides that:

    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

14. In this instance the applicant sought review by the Tribunal by application lodged on 18 May 2001.  In that application he provided a home address.  He indicated that his address for service was his home address.  He did not provide any telephone number.  He provided full details of an adviser (a migration agent) whom he had authorised to act for him, including telephone and fax numbers.  The Tribunal wrote to the applicant on 21 May 2001, that is, three days after the date of the review application, at the address that he had provided as his home and mail address, and also to his adviser, acknowledging receipt of the application and, importantly, advising the applicant that it was important to tell the Tribunal in writing if he changed his telephone number, home address or address for service and that the Tribunal would acknowledge any change of address.  It stated: “If we are unable to contact you, or you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence on your case”.  That is important because the applicant was informed directly of the need to tell the Tribunal of any change of address.  While he told the court today that he moved, he was unable to recall when that occurred.  There is certainly nothing to suggest that it occurred immediately after the date of the application at a time prior to receipt of that letter.

15. The Tribunal also wrote to the applicant on 13 May 2002.  It wrote to his notified home address and to his migration agent, advising that it had been unable to make a favourable decision on the information before it, and inviting him to attend a hearing.  The Tribunal received a facsimile dated 22 May 2202 from the applicant's adviser, referring to the hearing invitation and stating that:

    After taking every possible measure to contact the client, we regret to state that the applicant cannot be contacted.

16. It was in those circumstances, and in the absence of any other way of contacting the applicant, that the Tribunal noted that the applicant did not appear on the day and time and place for the hearing and, pursuant to s.426A of the Migration Act 1958, proceeded to make a decision without taking any further action to enable the applicant to appear before it.

17. The applicant complained that his lawyer had not notified him.  However this claim does not demonstrate any error on the part of the Tribunal.  There is nothing in the material before me to indicate any arguable case that the Tribunal fell into jurisdictional error in the manner in which it proceeded.  Nonetheless, I have also considered the Tribunal decision as part of considering whether the applicant would have any arguable case or prospect of success were his application for judicial review reinstated.

18. The Tribunal reasons for decision record that the applicant claimed to be a citizen of India who arrived in Australia on 19 May 1999 and lodged an application for a protection visa on 9 April 2001.  The Tribunal outlined his claims to fear persecution because of his political activities.  However it found that the claims as set out in the application for a protection visa were vague and lacking in detail.  It sets out particular areas in which there was a lack of detail and on which the Tribunal would have required more information had the applicant attended the hearing.  In the absence of detail and clarification of the vagueness of the applicant's claims the Tribunal found that it was unable to make findings of fact in relation to his claims.  There is nothing in the material before me, or in what has been said by the applicant, to suggest that there is any jurisdictional error in the manner in which the Tribunal proceeded on the basis of the limited evidence before it.  In particular, I note that in the application for review filed with the Tribunal the applicant repeated his claims but made no further written submission or elaboration despite the invitations to do so in May 2001 and May 2002.

19. In these circumstances the grounds raised by the applicant in his application for review and in court today do not raise any arguable jurisdictional error.  No lack of procedural fairness or other error is identified and his complaint about the conduct of his migration agent does not establish any arguable case of a jurisdictional error by the Tribunal.  There is nothing before the court to indicate that the applicant has any prospect of establishing any ground of review.  I am not persuaded by anything that he has said before the court today to establish that he has any prospect of establishing either a lack of procedural fairness or any other ground for review. 

20. I consider that it would be futile to set aside the orders that the court made dismissing his application for non-appearance and would merely delay the inevitable. In these circumstances I am not satisfied that this is a case in which it is in the interests of justice that I should exercise my discretion under Rule 16.05 to set aside the orders made by me on 14 April 2005. Hence the application that is now brought by the applicant should be dismissed.

21. I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that the applicant meets the costs of today.  There is nothing in the circumstances before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  3 June 2005