SZHWI v Minister for Immigration and Citizenship (No. 2)

[2009] FCA 212

FEDERAL COURT OF AUSTRALIA

SZHWI v Minister for Immigration and Citizenship (No. 2) [2009] FCA 212

PRACTICE AND PROCEDURE – notice of motion – application to set aside Court orders and judgment – applicant did not attend hearing of the appeal – notice of change in address for service – confusion about date of hearing – whether a new hearing warranted

Held: notice of motion dismissed

Federal Court of Australia Act 1976 (Cth)
Federal Court Rules

SZHWI v Minister for Immigration and Citizenship [2009] FCA 64

SZHWI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1296 of 2008

JAGOT J
10 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1296 of 2008

BETWEEN:

SZHWI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	10 MARCH 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion filed by the applicant on 19 February 2009 is dismissed.

2.The parties are each to pay their own costs of the notice of motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1296 of 2008

BETWEEN:

SZHWI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE:	10 MARCH 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by way of notice of motion to set aside the orders I made on 9 February 2009, in which I dismissed the appeal of the applicant on the motion against a decision of the Federal Magistrates Court.  I gave reasons for my decision to dismiss the appeal (SZHWI v Minister for Immigration and Citizenship [2009] FCA 64). Those reasons record that when the matter was called for hearing, the applicant did not appear. On the basis of the information made available to me at that time, I was satisfied that the appeal should be dismissed by reason of the applicant’s failure to appear. I was also satisfied that, in any event, the documents relating to the appeal did not disclose any jurisdictional error. I provided reasons for this conclusion in paragraphs 3 to 11 of my decision.

2. The notice of motion to set aside my decision arises in the following circumstances.  On 8 January 2009, the applicant apparently attended the Court and filed a notice of change in address for service.  On the same day, he collected a letter from the Court to both parties which notified him that the hearing had been listed for 9.30 am on 9 February 2009.  On 9 January 2009, the solicitors for the Minister sent a letter to the applicant at his old address for service, confirming the hearing for 9 February 2009.  However, the applicant did not receive that letter because it had been sent to his old address for service.  Similarly, it appears that the applicant did not receive a further letter from the Court of 12 January 2009, also sent to his old address for service, notifying him of the hearing scheduled for 9.30 am on 9 February 2009. 

3. The applicant says, however, that he did receive a letter from the Court dated 13 January 2009, although again it was sent to his old address for service.  This letter said:

   It is anticipated that the Federal Court will hear this appeal in Sydney during the sitting period 9 February to 6 March 2009, unless you are advised that the appeal will be heard on an earlier date. 

   A further letter will be sent to notify you of the date set for the hearing of the appeal.

4. The applicant says that when he received this letter he assumed, in accordance with the terms of the letter, that he would be sent a further letter notifying him of the date set for the hearing of the appeal.  I also note that the letter from 13 January 2009 concluded with the words:

   If you have any queries in relation to the above, please direct your enquiries to Tom Morgan, Deputy District Registrar, on 9230 8278. 

5. In short, what appears to have happened is that the general letter notifying the parties of the range of hearing dates was sent after two more specific letters advising the parties that the matter had indeed been fixed for hearing during that period, at 9.30 am on 9 February 2009.  According to the applicant, he did not receive a further letter from the solicitors for the Minister notifying him of the hearing date, dated 4 February 2009, because, again, that was sent to his old address for service.  He did receive a letter from the Court dated 9 February 2009, enclosing a copy of the Court’s decision dismissing the appeal, despite the fact that that letter also was sent to the applicant’s old address for service. 

6. The applicant submits that he was confused by the correspondence and that, for this reason, he did not appear at the hearing on 9 February 2009.  Further, the applicant submits that under no circumstances would he have missed the date of the hearing as it would have given him the opportunity to present his claims, but certain misleading information caused him not to attend the Court.  The Minister opposes the notice of motion essentially on two grounds.  First, in my reasons for decision of 9 February 2009, I did not simply dismiss the appeal because of the applicant’s failure to appear.  I considered all of the appeal documents and the decision of the Federal Magistrates Court, as well as of the Tribunal.  I came to the conclusion that the Tribunal’s decision did not disclose any jurisdictional error and that the decision of the Federal Magistrates Court, in consequence, was itself not affected by any jurisdictional error.  Second, the Minister says that the applicant did receive a letter of 8 January 2009 stating that the matter would be listed for hearing on 9 February 2009 at 9.30 am.  Although the applicant, in common with the respondent, then received the letter of 13 January 2009 identifying the range of hearing dates and stating that a further letter would be sent to notify the parties of the date set for hearing, that letter also said that if a party had any queries, they should contact the Deputy District Registrar on a given number.  According to the Minister, if the applicant had any confusion in his mind about when the matter was listed for hearing by reason of the correspondence which he did receive, then it was a simple matter to contact the Deputy District Registrar to obtain clarification. 

7. Not without some hesitation, I accept the Minister’s submissions.  In short, I did consider, as my reasons for judgment disclose, the Tribunal’s decision, the decision of the Federal Magistrates Court, and the applicant’s grounds of appeal, and reached the conclusion that no error was disclosed.  Further, although I accept that there was the potential for confusion in the course of the correspondence from the Court, which was not assisted by the fact that correspondence was forwarded to the applicant’s old address, the applicant did receive clear notification on 8 January 2009 of the date for hearing.  The later letter of 13 January 2009, at worst, should have raised some doubt about the hearing date with the reasonable course of action in those circumstances, particularly given the letter of 8 January 2009, being to contact the Deputy District Registrar as invited in the final paragraph of the letter of 13 January 2009.

8. In my view, I should not set aside the orders I made on 9 February 2009, which I have a power to do pursuant to section 25(2B)(bc) of the Federal Court of AustraliaAct 1976 (Cth) and Order 52 rule 38A(2) of the Federal Court Rules in circumstances where, as is the case here, it is my view that it would be futile to do so given the reasons for decision which I have already published (thereby exposing the Minister to unreasonable additional costs) and where, notwithstanding the potential for some confusion in the correspondence from the Court, the reasonable course of action would have been for the applicant to contact the Court to resolve his confusion, rather than simply deciding not to appear at all on the date notified in the letter of 8 January 2009.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        10 March 2009

The applicant appeared in person.
Solicitor for the First Respondent:	Ms J Dinihan of Clayton Utz

Date of Hearing:	10 March 2009
Date of Judgment:	10 March 2009