SZJIC and Anor v Minister for Immigration and Anor (No.2)
[2007] FMCA 708
•3 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIC & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 708 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – application for reinstatement – no appearance by applicants – application futile. |
| Federal Magistrates Court Rules r.16.05; sch.1 |
| SZJIC & Anor v Minister for Immigration & Anor [2007] FMCA 130 |
| First Applicant: | SZJIC |
| Second Applicant: | SZJID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2513 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 May 2007 |
| Date of last submission: | 3 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2007 |
REPRESENTATION
| No appearance |
| Solicitors for the Respondent: | Ms D. Watson, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2513 of 2006
| SZJIC |
Applicant
| SZJID |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This afternoon's application was an application by the applicants that the order of this Court made on 2 February 2007 dismissing their application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 17 August 2006, be set aside.
Reasons were published by me on that occasion and upon the making of that order. Relevantly, those Reasons are as follows:
1. “The first respondent seeks an order pursuant to r.13.03A of the Federal Magistrates Court Rules 2001 that the proceeding, commenced by way of application filed on 7 September 2006 seeking judicial review of a decision of the Refugee Review Tribunal dated 17 August 2006, be dismissed by reason of the failure of the applicant to appear at today's hearing.
2. The matter was first before the Court on 26 October 2006 at which time directions were made for the setting down of the matter for hearing. The applicant was given leave to file and serve an amended application and any affidavit evidence upon which he sought to rely by 21 December 2006. The applicant was also directed to file and serve written submissions 14 days before the hearing. A notation in the order stated that, in the event there is no appearance by the applicant at the hearing, the proceeding may be dealt with and dismissed in the absence of the applicant. There has been no further document received by the Court filed by or on behalf of the applicant since that date.
3. On 25 January 2007 the first respondent filed written submissions on behalf of the first respondents in accordance with the directions made on 26 October 2006.
4. At 7.35pm last night a fax was received by the Court registry from the applicant dated 1 February 2007 and stating the following:
“I am the applicant in the above mentioned application that has hearing tomorrow.
When I made an application to the court I requested for a Legal Representative under RRT legal advice scheme. The court provided me a practitioner in October 06 but the practitioner has not contacted me and has not arranged any type of advise to make me understand whether I had a case to fight in the court or not.
In the above situation, I am contacting a private lawyer and will take few days for me to organize the practitioner to assist me in my case.
I request to Honorable (sic) Magistrate an “adjournment for a week” to prepare my arguments or if advised by the Practitioner negatively, I will withdraw the application within a week. Once I arrange the lawyer, he/she will contact the court directly.
Kindly consider allowing me time for the above. I apologies (sic) to the court and to the Minister for the inconvenience caused, due to lack of knowledge of the procedures. I will bear the cost of occurred for the hearing of 2 Feb 2007.
Kindly consider allowing me some time for the above.”
5. I understand from the fax that essentially the applicant is not intending to appear today because he was intending to contact a private lawyer and it would take a few days for him to organise for that to occur. There has plainly been ample time for the applicant to take whatever steps he wished to obtain legal advice. The letter itself does not assert that the applicant has in fact made contact with a lawyer, simply that he is intending to and it will take him a few days to do so. There is no evidence in admissible form before this Court to the effect of the applicant's activities in relation to pursuing any legal advice.
6. Had the applicant appeared this morning and sought an adjournment for the reason of obtaining legal advice, it is highly unlikely that he would have been successful in such an application. In the circumstances, the applicant's request for an adjournment made at
7.30pm last night in the fax is refused. The applicant was clearly notified by this Court, on 26 October 2006, that if he failed to appear at this hearing, the matter may be dealt with and dismissed in his absence. In the circumstances, I am satisfied that it is appropriate, to make the Orders sought by the first respondent.” (SZJIC & Anor v Minister for Immigration & Anor [2007] FMCA 130)
On 16 March 2007 the applicants filed an application for reinstatement of their proceeding. At the same time the applicants filed an affidavit affirmed by the first named applicant, the applicant husband (“the Applicant”), on 16 March 2007 in the following terms:
“1. I seek orders from the court to set aside my judgment made by the Federal Magistrates Court dated 2 February 2007.
2. I will provide my amended grounds and submission to the court if honourable court allows me to appear. I believe that the honourable FM will allow me to appear before him to explain my arguments.”
It is now 3.53pm and the applicants have been called on at least three occasions. The applicants’ reinstatement application was fixed for hearing before me this afternoon at 2.30pm and I note that the time and date is fixed on the application that appears to have been signed by the Applicant.
The first respondent tendered a letter dated 17 April 2007 on Australian Government Solicitor letterhead addressed to the applicants at the address identified by the applicants in their application for receiving mail. I note that such address is the same address as the address provided by the Applicant in his affidavit affirmed 16 March 2007 and in their reinstatement application filed on the same date.
The letter dated 17 April 2007 on the Australian Government Solicitor letterhead is marked exhibit 1R and purports to remind the applicants that the matter has been listed before me today for hearing at 2.30pm. The letter provides the name of the Court and the level and address of this Court. The letter concludes by saying:
“Please note, should you fail to attend on the above date, orders will be sought that your Application be dismissed with costs and without further notice.”
In the circumstances, I am satisfied that the applicants were aware of today's hearing of their reinstatement application.
The substance of the affidavit relied upon by the Applicant simply states that he would seek orders to set aside the order made dismissing the application for judicial review and states that he would provide amended grounds and submissions if allowed to appear. No other evidence was filed by the applicants or on their behalf to explain the failure by the applicants to appear on the last occasion.
Beyond those matters referred to in my reasons dated 2 February 2007, there has been no other communication received from the applicants by either the first respondent or by this Court in relation to any further draft pleading that the applicants may seek leave to file and rely upon.
The applicants’ application filed on 7 September 2006 identifies the following ground:
“The RRT has made a decision without considering all of the ground claimed on my application and refused the application on the basis of self formed view of Credibility made an unfair decision affecting me.”
That application is unsupported by either particulars or evidence. The applicants attended a directions hearing before me on 26 October 2006 at which time they were granted leave to file and serve an amended application and any affidavit containing additional evidence upon which they intended to rely, including any transcript of the Tribunal hearing by 21 December 2006. No document has been filed by or on behalf of the applicants in compliance with that direction.
I note that whilst the Applicant attended a hearing before the Tribunal at which he gave evidence, the findings and reasons section of the Tribunal's decision indicate that the Tribunal did not find the Applicant to be a credible witness and indeed:
“…found his evidence unconvincing and finds that he has fabricated his claims.”
The applicants’ application complains about that adverse credibility finding, however, as stated above, does not make any assertion as to why that finding was not open to the Tribunal on the evidence and material before it.
There is nothing apparent on the face of the decision or anything put by the applicants to suggest that a reinstatement order would be anything other than futile. In the circumstances, the applicants’ application for reinstatement filed on 16 March 2007 is dismissed.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in an amount of $500. I am satisfied that the sum sought is no more and indeed is less than the amount available to the first respondent under sch.1 of the Federal Magistrates Court Rules 2001. Accordingly, I order that the applicant pay the costs of the first respondent fixed in an amount of $500.
RECORDED : NOT TRANSCRIBED
I also direct the first respondent to notify the applicant of the orders made this afternoon, perhaps to provide the applicant with a copy of the orders made this afternoon together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001.
RECORDED : NOT TRANSCRIBED
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 22 May 2007
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