SZGBN v Minister for Immigration & Anor (No.2)
[2006] FMCA 1909
•18 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBN v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1909 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application to set aside judgment. PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment entered in the applicant’s absence – whether satisfactory application – whether reinstatement futile. |
| Migration Act 1958 (Cth), ss.36(2), 426A Federal Magistrates Court Rules 2001 rr.1303A(c), 16.05 |
| S329 of 2003 v Minister for Immigration & Anor (No.2) [2006] FMCA 303 followed SZBRB v Minister for Immigration [2004] FMCA 285 followed SZCPY & Anor v Minister for Immigration [2004] FMCA 646 followed SZGBN v Minister for Immigration & Anor [2006] FMCA 1772 referred to. |
| Applicant: | SZGBN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 896 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 December 2006 |
| Date of Last Submission: | 18 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $900.00 and I will allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 896 of 2005
| SZGBN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application to set aside orders that were made on
16th November 2006 dismissing the applicant's application for review of a decision of the Refugee Review Tribunal. The application was dismissed under the provisions of r. 13.03A(c) of the Federal Magistrates Court rules because the applicant did not attend at the hearing. He now seeks an order reinstating his application under the provisions of r. 16.05. It is well established that in considering an application for reinstatement the court must look not only at the circumstances which led to the party missing the hearing but also at the merits of the substantive application. The principle was succinctly stated by Driver FM in SZCPY & Anor v Minister for Immigration [2004] FMCA 646:
Where there are no prospects for success on a substantive application reinstatement would be futile, therefore an application for reinstatement ought to be refused.
This approach was taken by Raphael FM in SZBRB v Minister for Immigration [2004] FMCA 285 where he refused to reinstate proceedings where the facts indicated there was no possible utility in reinstating and therefore he held that it would not be in the interests of justice to reinstate the matter.
More recently in S329 of 2003 v Minister for Immigration & Anor (No. 2) [2006] FMCA 303 Baumann FM noted that the court may consider setting aside an order made in the absence of the party. It is a discretionary exercise of power. His Honour said at paragraph 5 of the decision:
In exercising that discretion the court should consider at least:
a)the reasons for the failure to appear;
b)the prospects of success of the substantive application;
c)whether any prejudice to the respondent is likely to occur.
I propose to consider all of those aspects. The substantive application came before a registrar of this court for the first time on
27th April 2005. At that stage the applicant was represented by a solicitor. The court made orders by consent and listed the application for final hearing at 2.15 p.m. on 16th November 2006 before me at John Madison Tower, 88 Goulburn Street, Sydney. The matter remained in the list until on 27th September 2005 the applicant's solicitor filed a notice of intention to cease to act. That was followed by a notice of ceasing to act and an affidavit of service both of which were filed on 9th October 2006. The application remained in the list and on
16th November 2006 the application was called on at 2.15.
The applicant did not appear nor did anyone appear on his behalf.
I note from the earlier decision that the applicant was called again at
17 minutes to 3 and there was still no appearance. I then acceded to an application by counsel for the respondent Minister that the substantive application should be dismissed under the provisions of r. 13.03A.
I dismissed the application with costs, the citation for that decision is SZGBN v Minister for Immigration & Anor [2006] FMCA 1772.
The applicant has now filed an application and an affidavit in support on 11th December 2006. In the orders that he seeks he said as follows:
Because I made mistake about final hearing on Tribunal refugee review, because I feel unwell and I don't want to make mistake twice. I want that my application you can hear originally from me and hopefully you can accept me for protection visa.
In the applicant's affidavit in support he sets out that he received a letter from this court on 5th December without any information from the court but he knew that his schedule for hearing date was
16th November 2006. He said before the hearing date he asked the solicitor on 15th November what he had to do and did he have to come to a hearing and she said:
You no need to come if no received anything from the court and I'm just waiting for a letter from the court but on 5th December I received a letter from the court that my application was refused because of non appearance at the hearing.
The applicant attended court and gave oral evidence and was cross-examined by Mr Mitchell of counsel. He told the court that he wished to have his application presented from the beginning; he conceded that he did not attend court; he said that he knew he had to be there and his solicitor told him that. His solicitor he said did not tell him where the hearing was going to be as to what address or what time. He told the court that he made those inquiries on 15th November, the day before the hearing; he then said the solicitor to whom he spoke advised him that he had to wait for a decision from the court.
In cross-examination he said that he had spoken to a solicitor whose name is Eva who works in Haymarket, he believed the address was in Liverpool Street. He conceded that he had not attended the hearing of the Refugee Review Tribunal because he had been unwell.
He conceded that he knew the hearing date, 16th November, but denied that he knew it well over a year before that date. He said that he did not know that his solicitor had attended the court in April 2005 to obtain a hearing date but he said that all he knew was the date but he did not enquire any further of the solicitor. He conceded that he had been informed about a month before the hearing that the solicitor was no longer acting but he did not do anything to enquire until the day before the hearing. He said that his English was pretty limited but he certainly understood what his former solicitor had said, he said it was pretty clear I had to attend and he told the court that the solicitor told him that he would be able to stay in Australia until 16th November.
The applicant then gave evidence about the circumstances which led to his original application for a protection visa.
He said that he had been talked into attending a seminar, he was a Muslim, all he knew at the time was that he just wanted to pray so he could get employment, he was not aware of the purposes of the group but after two days he realised that the group he was involved in was not for him, he did not attend any more but after that he received threatening letters which were anonymous. Those letters told him that he should rejoin the group. He said that a friend of his had been beaten up, he reported the matter to the police but when he got the opportunity to work for P&O Australia he was very thankful to do that and so he then left Indonesia and took employment aboard ship and applied for a protection visa in Australia. He conceded that he did not tell the Tribunal that he was not able to attend the hearing but he did say that he had sent a letter saying that he could not attend because he was ill.
The applicant in his original application for review accompanied that with a letter of a page and a half setting out the circumstances of his case, he was invited on 27th January 2005 to attend a hearing on
22nd February, he forwarded the response to hearing invitation on
14th February indicating that he wished to attend the hearing and he would require an interpreter in the Indonesian language.
He accompanied that with a page and a half letter setting out his details. He later faxed a medical certificate on 21st February which indicated that in the doctor's opinion he would be unable to work on that day only. He later sent a letter which was received the day after the hearing complaining of pains.
The Tribunal was not satisfied that the applicant had shown sufficient grounds for not attending the hearing and indeed the Tribunal member telephoned the doctor to ask whether in the doctor's opinion the applicant would not have been well enough to attend the hearing.
The doctor told the Tribunal member that the applicant had not asked for a medical certificate to cover the hearing on 22nd February and the doctor was not of the view that the applicant would not have been well enough to attend the hearing on 22nd February. In the circumstances the Tribunal decided to exercise its power under s.426A of the Migration Act to deal with the application for review without taking any further steps to enable or allow the applicant to appear before the Tribunal.
The Tribunal considered the applicant's claims and evidence which is set out on pp 105 & 106 of the court book, the Tribunal's findings and reasons are set out on pp 106 & 107 and the Tribunal was not satisfied that the applicant faced a real chance of convention related persecution in Indonesia. The Tribunal held that his claimed fear of persecution was not well founded and affirmed the decision not to grant a protection visa. The Tribunal's reasons for not accepting the applicant's account were due to the fact that the applicant's claims in the Tribunal's opinion were vague and entirely unsupported. The Tribunal did not accept the logicality of the applicant's claims and noted that the applicant had not provided any evidence of residing in Indonesia long enough or often enough for the relationship that he described with the group to have existed or developed as he claims. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the convention and did not satisfy the criterion set out in sub-s.36(2) for a visa.
In my view the applicant's account of the circumstances in which he did not attend the hearing in this court does not provide a reasonable explanation. He had been legally represented and he was aware well before the hearing as to when the hearing was to take place. When the solicitors filed a notice of ceasing to act the applicant had at least a month's notice and knew that he had to make arrangements about the hearing. To leave his inquiries until the day before the hearing seems to me to be foolhardy to say the least. In any event, I am most sceptical about the applicant's account of what he says the solicitor said to him. I am not satisfied that the applicant has provided a reasonable explanation for his failure to attend the hearing.
In any event, I am not satisfied that there would be any utility in allowing the applicant back in to argue the merits of his substantive claim. The fact is that the grounds set out in the original application filed on 12th April 2005 do not set out a reasonable cause of action and the applicant's account in the witness box today referred to nothing more than a restatement of his factual claims for a protection visa, merits review in any event is not available in an application for judicial review.
In my view even if I were satisfied that there was an adequate explanation for the applicant's failure to appear it would be of no utility as his substantive application was doomed to fail. I have also considered as to whether there would be any prejudice to the respondent, I believe that the prejudice to the respondent would be relatively minor, but the real reasons are first, I do not accept the applicant's explanation and second, I am not satisfied that his substantive application has any prospects of success. The application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 19 December 2006
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