SZFML v Minister for Immigration
[2005] FMCA 1685
•10 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFML v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1685 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal. PRACTICE & PROCEDURE – Judgment – set aside judgment – where applicant produced relevant medical evidence – where applicant appears to have an arguable case. |
| Judiciary Act 1903 (Cth) Migration Act 1958 (Cth), s.425A Federal Magistrates Court Rules 2001, r.16.05 |
| Lindon v Commonwealth (No 2) (1996) 70 ALJR 541 SZBRB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 285 SZCPY & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 646 |
| Applicant: | SZFML |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 118 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 November 2005 |
| Date of Last Submission: | 10 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is granted.
That Order 1 made on Thursday 11 August 2005 is set aside.
The application is adjourned to Thursday 8 December 2005 at 2.15pm for final hearing.
Leave is granted to join the Refugee Review Tribunal as second Respondent to proceedings.
The Applicant is to file and serve any amended application on which she seeks to rely and serve a copy on the first Respondent’s solicitor by 4.00pm Friday 25 November 2005.
Parties are to pay their own costs.
The Applicant is warned that if she does not attend court on
Thursday 8 December 2005 at 2.15pm, the matter may proceed in her absence.
I require a Mongolian interpreter for the final hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 118 of 2005
| SZFML |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application under r.16.05 to set aside an order that I made on 11th August 2005 dismissing the applicant's application for review of a decision of the Refugee Review Tribunal that was made on 26th November 2004 and handed down on 16th December 2004. In that decision the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the applicant.
The applicant filed her application to set aside the decision on the second of this month. She supported that application with an affidavit. In that affidavit she sets out the reasons why she failed to comply with the directions of the Court. In summary she deposed that since April of this year she has suffered from serious infections which caused her very intense pain. She deposed that she was treated by medical practitioners and has been prescribed medication. She claims that because of the pain that she had suffered and the strong medication she had been weak, not only physically but mentally. She claims that she could not think about the due date for lodging an amended application and she says that dates things went completely out of her brain.
She changed her address in March of this year but neglected to notify the Court about the change of her address. She is still undergoing some treatment but she says that her health has improved. After the applicant found out that her application had been dismissed, she went to the Department of Immigration and Multicultural and Indigenous Affairs and informed them about her circumstances. She was granted a bridging visa which was due to expire on the sixth of this month.
I presume that the visa has been extended until after this hearing.
In her affidavit the applicant agrees that she did not comply with the Court orders and did not inform the Court about her change of address. She maintains in her affidavit that she has an arguable case for review of the Tribunal decision.
The applicant has annexed to her affidavit an original medical certificate from a Dr Miklos Varady dated 28th October 2005. She has also annexed copies of prescriptions for medication prescribed by various medical practitioners. Dr Varady's letter confirms that the applicant has been treated at the medical centre on several occasions since April of 2005 and on one occasion required an ultrasound.
Dr Varady confirms that the applicant was last seen on 6th August 2005 with another recurrence and was again treated and confirmed that during that period she had been generally weak and unwell. He confirmed various symptoms from which she still suffers including episodic adrenal pains.
The applicant was cross-examined on her affidavit by Mr Bird, solicitor appearing for the respondent Minister. Mr Bird has referred the Court to two decisions of the Federal Magistrates Court relating to applications to reinstate an application after it had been dismissed.
The first of those is SZBRB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 285, a decision of Raphael FM. That decision was an application for review of a decision of a Registrar of this Court where the applicant had not complied with directions to appear and the case had been dismissed by the Registrar.
The applicant in that case sought to reinstate proceedings in her application for review by the Federal Magistrate. The Court noted that the applicant had not appeared at a directions hearing and that the applicant had blamed her former solicitor about not informing her that she should attend the Court. His Honour said at paragraph 5:
In many circumstances I would have been inclined to reinstate the matter and perhaps obtain some further information about the conduct of the solicitor involved but in this case I have declined to do that. The reason for my decision is that it seems to me that in all the circumstances the applicant's claim for review is hopeless.
His Honour briefly examined the matters referred to in the substantive application in order to form that conclusion and he dismissed the application. The other decision to which I have been referred is SZCPY & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 646 which is a decision of Driver FM. This decision was also a decision on an application for review after a Registrar of the Court had dismissed the application when the applicant failed to appear at a directions hearing. Coincidentally, the applicants in that case were also from Mongolia and they had obtained advice from the same migration agent.
In a detailed decision, his Honour examined the facts and noted claims by the applicants and the fact that they had not appeared when they should have. His Honour considered the decision of Raphael FM in SZBRB v Minister for Immigration which I previously referred.
His Honour said at paragraph 11:
In ordinary circumstances that might call for an order reinstating the Judicial Review application. However, this case does not present ordinary circumstances. In the first place, there is a real possibility that an incorrect address for service was given intentionally. There is a real possibility that the migration agent, with or without the knowledge of the applicant, engaged in a scheme to attempt to frustrate and prolong the Court proceedings. Even if that is not the case I would not reinstate the application, that is because I consider that the application for Judicial Review has no prospect of success.
I have read through both of those decisions by my learned colleagues and with respect I regard them as persuasive. I have applied the principles set out in those decisions toward the case before me.
As Mr Bird for the respondent points out, the applicant must not only show that there are grounds for setting aside the decision to dismiss the application but that there is some purpose in allowing the applicant back into Court to argue the substantive application. If the substantive application is hopeless then there is no possible utility in setting aside the earlier decision.
I have, in a decision earlier today which will be called Yang Yu v Minister for Immigration, declined to set aside a decision dismissing an application on 23rd February this year on the basis that:
a)the applicant had not established sufficient grounds for setting aside the application on the basis of her inability to attend; and
b)that there would be no utility in doing so as her application could not possibly succeed.
All of these cases must be decided on their own facts however. In my view, this application can be distinguished on the basis that the applicant has provided evidence which would allow me to find that she was suffering from illness at the time the application was scheduled to be heard on 11th August. She has provided medical evidence and indeed I note that she had attended a doctor for treatment only five days before the hearing was to take place. The medical evidence supports the fact that her illness had been ongoing from April of this year right throughout the period that the matter was before the Court.
The applicant has provided this evidence of her treatment and medication and has in her affidavit faced up to the fact that she had not complied with the directions of the Court. Her evidence has been tested by cross-examination today and I am satisfied that she has established that she suffered from illness during the relevant time and indeed she was somewhat distressed during proceedings. It is also noteworthy that the applicant on realising that her application had been dismissed and the she had become therefore an unlawful non-citizen, did not go underground, to use the vernacular, but took herself to the office of the Department of Immigration and Multicultural and Indigenous Affairs to explain the situation and she obtained a bridging visa.
I am not of the view that the applicant has shown an unwarrantable or unexplained delay in bringing this application to restore the proceedings. It is for all of those reasons that I am satisfied that the applicant has shown that she has prima facia a ground for setting aside the decision to dismiss her application. I look however at the decisions of SZBRB v Minister for Immigration and SZCPY & Anor v Minister for Immigration to see whether there would be any possible utility in setting aside the decision and giving the applicant an opportunity to argue her substantive application.
It is fair to say that a case where an applicant did not appear for a hearing of the Refugee Review Tribunal, which has now sought to be set aside, cannot be regarded as a strong case. It is well known that most applications in those circumstances do not lead to a successful outcome. At the same time however, in fairness, Mr Bird for the respondent Minister has raised an issue relating to notice of an adjourned hearing under s.425A of the Migration Act, it would be his submission that that particular adjournment does not constitute a jurisdictional error but that is perhaps a matter for another day.
The applicant has said that she received assistance from a friend in preparing her original application and has filed an outline of submission headed: Applicants Contentions of Fact and Law, which is quite lengthy. It is somewhat different from the grounds set out in the applicant's original application but I note that some of the paragraphs bear some relation to the applicant's situation.
It is for all of these reasons that I find, one, I am not persuaded that this application has been brought for an improper purpose, namely, an abuse of process by unnecessarily prolonging the applicant's stay in Australia, two, that there is medical evidence from which it can be inferred that the applicant was ill at the relevant times, and three, that she has an arguable case on her substantive application. I would not go so far as to say that it is a strong case but noting the decision of the Kirby J in the High Court of Australia in Lindon v Commonwealth
(No 2) (1996) 70 ALJR 541 at 544-5, even a weak case deserves its time in Court.Time will tell as to how strong or how weak the applicant's case actually is. I propose to list this matter for hearing at an early date, as I note from the applicant's own evidence that she has recovered somewhat, even if not completely, from her illness and I note that I have time available on the afternoon of Thursday, 8th December, which is four weeks from today. I propose to list the application for hearing on that date and make appropriate directions.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 15 December 2005
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