SZFWV v Minister For Immigration and Anor (No.2)
[2005] FMCA 1748
•17 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFWV v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2005] FMCA 1748 |
| MIGRATION – Visa – protection visa – application for review of Refugee Review Tribunal decision affirming a decision not to grant a protection visa – Applicant is a citizen of Thailand – where Applicant did not attend the RRT hearing – where application dismissed due to non-attendance by Applicant. PRACTICE & PROCEDURE – Judgment – set aside judgment – costs. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001 R.16.05
Capital Webworks Pty Limited v. AdultShop.com Limited & Ors [2002] FCA 389
Wati v. Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578
SZBRB v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 285
SZCPY & Anor v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 646
SZFML v. Minister for Immigration & Anor [2005] FMCA 1685
Lindon v Commonwealth (No. 2) (1996) 70 ALJR 541
| Applicant: | SZFWV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 634 of 2005 |
| Delivered on: | 17 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Slattery |
| Solicitor for the Respondent: | Ms Mak |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
I grant the application.
Order 1 made on 1 September 2005 be set aside.
Leave granted to join Refugee Review Tribunal as a party to the proceedings.
The Applicant is to file any Amended Application and affidavit upon which she seeks to rely in compliance with Part 2 Division 2.1 of the Federal Magistrates Court Rules 2001 and serve a sealed copy on the First and Second Respondents by 4:00pm Friday 16 December 2005.
The matter is adjourned to Monday 16 January 2006 at 3:00pm for Final Hearing.
The Applicant must file and serve Written Outline of Submissions and List of Authorities by Monday 9 January 2006.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,420.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 634 of 2005
| SZFWV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under Rule 16.05 to set aside an order that I made on 1st September 2005 dismissing the Applicant's application for a review of a decision of the Refugee Review Tribunal. In that decision the Tribunal had affirmed the decision the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the Applicant.
The application was dismissed under the provisions of Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to absence of the Applicant. I also made an order for costs and I vacated a substantive hearing date of 25th September 2006 at 2:15pm. The Applicant has now filed an application seeking to set aside that order of dismissal. She has accompanied that application with an affidavit in which she said that she did not intend to be absent from the hearing about her non compliance with a Court order to file an immediate application. She is a lady from Thailand who does not speak, read or write English very well. She is dependent on a friend of hers who speaks English.
She said that she received a notice from the Respondent Minister's solicitors stating that if she did not remedy the breach, i.e., that is to file an Amended Application before the due date 1st September 2005, then the solicitors would rely on that letter and ask the Court to dismiss her application.
She did file an Amended Application and she believed and was told by a person assisting her, who was not legally qualified, that that was all that was necessary to keep her application from being dismissed. She said that she was not trying to be uncooperative and that her friend had engaged a barrister to appear for her for the now vacated hearing date of 26th September 2006. She goes on to say,
“I have had great difficulty in dealing with the government and the Court because of my poor English and lack of understanding as to their processes.”
In Court today her counsel, Mr Slattery, filed an affidavit by the Applicant's friend, Danny Gaida, and he said that he did not tell the Applicant to attend the hearing because,
“I was not told by Mr Slattery that she had to go. Mr Slattery did not explain to me that service on the solicitors for the Minister would need to be executed by me. I thought that it was something that the Court did. From what I saw in the letter sent from Clayton Utz I thought that all that had to be done was to file the Amended Application.”
He went on to say that he had been overseas and he did not ask Mr Slattery of counsel to provide an Amended Application until a few days before the hearing date. He does go on to say that counsel had told him that he, counsel, could not file or serve the document himself because he was a barrister and so it was up to him.
Neither the Applicant nor the other deponent were required for cross-examination on their affidavits and in fairness there would not appear to have been a great deal that would have been achieved.
I have had the opportunity of reading written submissions prepared by counsel for the Applicant and written submissions to which has been attached a very useful chronology prepared by Ms Mak, the solicitor for the Respondent Minister. I have also had the opportunity to read through an affidavit filed in Court today by Olivia Mak, solicitor, to which she annexes copies of relevant correspondence.
The letter, which seems to have been the occasion of such confusion in the mind of the Applicant, appears to be the letter of 28th June 2005. That letter says:
“In breach of the Court's order you have not filed and served an Amended Application. Consequently we requested of the Court to re-list the matter in a non compliance list.
We have been informed by the Federal Magistrates Court that your matter has been listed in the non-compliance list and will be heard by Federal Magistrate Scarlett on 1 September 2005, 10:15am at John Maddison Tower, 88 Goulburn Street, Sydney, NSW.
We note that if by 1 September 2005, you do not remedy the breach of the Court's order, that is you do not file and serve an amended application giving full particulars of each ground of review relied upon, we will rely on this letter and ask the Court to dismiss the application with costs.”
True it is that Ms Mak conceded that the letter did not specifically say that if an Amended Application was filed the Applicant need not appear not need anyone appear on her behalf. The letter does not, however, appear to me to be particularly ambiguous, although I am dealing with the letter from the perspective of a person whose first language is English and a person who has been a member of the legal profession in one form or another for a considerable number of years.
It is, of course, well-known that Rule 16.05 of the Federal Magistrates Court Rules provides a mechanism for the Court to set aside or vary a judgment or order before it has been entered or after it has been entered.
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party or
(b) the order is obtained by fraud or
(c) the order is interlocutory or
(d) the order is an injunction or for the appointment of a
receiver or
(e) the order does not reflect the intention of the Court or
(f) the party in whose favour the order is made consents.
(3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
Whether or not the Court should set aside the order relies on two issues as Ms Mak, for the Respondent, points out. The authorities are that judgment or orders should not be set aside as a matter of course.
Ms Mak refers the Court to Capital Webworks Pty Ltd v. AdultShop.com Ltd & Ors [2002] FCA 389 where His Honour Justice Nicholson gave consideration to the circumstances if the Federal Court would set aside an order under the provisions of Order 35 Rule 7(2) of the Federal Court Rules which are in almost identical terms to Part 16.05 of the Federal Magistrates Court Rules. His Honour noted that the discretionary power entrusted to the Court required the existence of exceptional circumstances and he referred to the decision of the Full Bench of the Federal Court in Wati v. Minister for Immigration and Multicultural Affairs (1997) 148 ALR 578 where it was said:
“The authorities there referred to stressed the need for great caution in the existence of circumstances which are quite exceptional.”
Furthermore she points out that the High Court in De L v. Director –General, NSW Department of Community Services (1997) 190 CLR 207 at page 215:
“It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional cause is required 'without fault on his part'.”
The Federal Magistrates Court has had the opportunity to look at the application of its own Rules in several matters. Federal Magistrate Raphael dealt with the issue in SZBRB v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 285. Federal Magistrate Driver referred to similar provisions in SZCPY & Anor v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 646. I quoted and referred to both of those matters in a recent decision SZFML v. Minister for Immigration & Anor [2005] FMCA 1685, a decision which was handed down on the 10th of this month.
It is clear that there are two matters that need to be considered by the Court. First, has an applicant established sufficient grounds for setting aside the decision, in other words is there a satisfactory explanation for the applicant's absence and second, whether there is an arguable case. In the decisions of SZBRB, which I've previously referred, and SZCPY, to which I previously referred, in each case the Court considered first of all reinstatement and the utility of reinstatement. In SZBRB, Federal Magistrate Raphael said,
“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.”
In SZCPY v. Minister Federal Magistrate Driver 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. His Honour went on to say,
“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.”
In my view, dealing with the first of the questions, the reason that the Applicant did not attend court on 1st September was not through any fault or miscommunication on the part of the Respondent. The fault or miscommunication or misapprehension was entirely on the part of the Applicant. The affidavit of Mr Gaida blames Mr Slattery of counsel, who has taken this matter as a direct brief, for not making it clear there was a need for attendance at Court. Mr Slattery, to his credit, has manfully shouldered the blame and refers to fault on his part. In my view, he has shouldered more of the blame than should rightfully be assigned to him.
It is well-known that when a barrister accepts a direct brief, the barrister operates under certain limitations. The absence of an instructing solicitor is a serious handicap, as many members of the Bar have found out. Where another party acts as a liaison between an applicant who does not have a good command of English, and the barrister, it is quite possible that miscommunications can occur. What a barrister needs to do is to have a conference with the client at an early stage and if the client has difficulties with the English language, arrange for there to be a capable interpreter present so that the law and the requirements can be clearly explained. That said, I am mindful of the fact that the Applicant does not have a good command of English and does not have a solicitor who can provide her with regular assistance and it is possible that there was a genuine misunderstanding on the part of the Applicant about her need to attend on a non compliance hearing where an Amended Application was in fact filed although not, on my understanding, served.
It is for those reasons that I am satisfied that an explanation has been given for the Applicant's absence. However, I must follow the decisions of my learned colleagues in SZBRB and SZCPY. Whilst their decisions are not binding up on me they are, of course, persuasive and I regard them as such. There would be no point served in reinstating an application for a hopeless case.
Mr Slattery of counsel has tendered a handwritten draft of an Amended Application which if the matter is reinstated, the Applicant would seek to file. I would comment that the draft is just that, it is not in a form that would be accepted for filing as it does not comply with Part 2 Division 2.1 of the Federal Magistrates Court Rules. It does however indicates that counsel have considered the matter and wishes to argue on behalf of his client, a ground relating to a breach of s.424 of the Migration Act relating to the provision of certain information which he describes as adverse information specifically about the Applicant and the foundation for a finding of inconsistency by the Tribunal.
Ms Mak, for the Respondent Minister, submits that the Amended Application would not assist the Applicant as the construction placed by the Applicant on information is far too wide and general and, in short, the application is still unlikely to succeed.
What I have to be satisfied with is whether or not there is an arguable case. An arguable case does not need to be a case where the Court can see that it is highly probable or even very highly probable that the applicant will succeed. The Applicant's case at best is certainly a long way from that. Indeed, the fact that the Applicant did not attend the hearing of the Refugee Tribunal may well be a severe hindrance to her application being successful. At the same time, however, I am not satisfied that the Applicant's case can be characterised as a hopeless case. It is, to my view, an arguable case. That, I would say, to avoid any undue expectations, is the highest at which I will put it but it is the highest at which I need to put it.
As I am satisfied that there is an explanation, taking into account the circumstances of this Applicant, and as I am satisfied that the case in respect of the substantive application is an arguable case, in my view the Applicant should be given the opportunity to argue this case in Court.
There is on indication that the application has been brought for any improper reason or for reasons of any abuse of process. I am mindful of the statement by Justice Kirby in the High Court of Australia in Lindon v. Commonwealth (No.2) (1996) 70 ALJR 541 that even a weak case deserves its time in Court. In my view I should allow the Applicant to have the opportunity to present her case. I would make it clear that she will not get a hearing date in September 2006. I will accommodate an early hearing as I believe that applications should be dealt with promptly by the Court and not while away their time in a list when they can be dealt with by the Court at an earlier date.
I am also of the view that in my discretion I should make an order that the Applicant should pay the Respondent's costs because it is quite clear from the Respondent's case that there is no fault to be sheeted home to the Respondent. The Applicant is perhaps fortunate that she has been granted the opportunity to get back into the contest but she should bear the costs. I do not propose to reserve the costs. I propose to make a costs order today and in my view the amount that I should award, looking at Schedule 1 of the Federal Magistrates Court Rules is the amount of $1,135.00 set out in stage 2 for an entering or summary hearing as a discrete event, together with time in Court which I will allow $285.00 which will amount to $1,420.00, the normal time to pay will apply.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 28 November 2005
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