SZJIC v Minister for Immigration
[2008] FMCA 917
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 917 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal of notice of motion to reinstate previously dismissed application – whether the Applicant’s delay of 12 months in filing a notice of motion was reasonable – whether there is any utility in remitting the matter. |
| Federal Magistrates Court Rules 2001, r.13.03A(c) |
| First Applicant: | SZJIC |
| Second Applicant: | SZJID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2513 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 June 2008 |
| Date of Last Submission: | 27 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Gujarati interpreter |
| Solicitors for the Respondent: | Ms B. Griffin, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2513 of 2006
| SZJIC |
First Applicant
| SZJID |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the applicants to set aside Orders made by this Court on 3 May 2007 dismissing an earlier application by the applicants to set aside Orders made by this Court on 2 February 2007 dismissing the applicants proceeding commenced by way of application filed on 7 September 2006.
The applicants’ application was dismissed by this Court on 2 February 2007 by reason of the applicants’ failure to appear at the hearing and pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001. This Court provided the following reasons for that judgment:
“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 at7.30pm 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.
RECORDED : NOT TRANSCRIBED
7. The first respondent seeks costs fixed in the amount of $4,500. I note that such sum sought is less than the amount provided in the costs schedule of the Federal Magistrates Court Rules 2001, a copy of which was provided to the applicant at the directions hearing on 26 October 2006.
8. I direct the first respondent to provide a copy of this order to the applicant at his identified address for service together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001. I direct that that be done forthwith.
The applicants then filed an application on 16 March 2007 in which they sought that the Orders of the Court made on 2 February 2007 be set aside. That application was set down for hearing on 3 May 2007.
Again, the applicants failed to appear on 3 May 2007 at the hearing of that motion. Again, the motion was dismissed on 3 May 2007 pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 by reason of the applicants’ failure to appear. The Reasons of the Court were as follows:
“1. 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.
2. 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
7.30pmlast 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)
3. 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.”
4. 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.
5. 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.
6. 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.”
7. In the circumstances, I am satisfied that the applicants were aware of today's hearing of their reinstatement application.
8. 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.
9. 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.
10. 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.
11. 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.”
12. 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.
13. 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
14. 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
15. 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”
On 30 May 2008 the applicants filed a Notice of Motion, the subject of this hearing before the Court. The Notice of Motion sought orders setting aside the Orders made by this Court on 3 May 2007 dismissing the application before it. In support of his motion the applicants relied on the affidavit of the first-named applicant (“the Applicant”) sworn 26 May 2008. The Applicant stated in that affidavit, relevantly, as follows:
“On I, on this 26 May 2008, I, [SZJIC] by profession a labour of [address] with the postal address [address]
say on oath –
1. That the applicant lodged an application with the Federal Magistrates Court of Australia, which was dismissed on 03 May 2007 by the learned Federal Magistrate Court of Emmett FM under Federal Magistrate Court Rulesr16.05;sch 1. This application was dismissed on the grounds that the applicant did not appear, the applicant was misguided by his Migration Agent who told the applicant there is no need for the applicant to appear before the Court as they will decide the application on the papers available with them on the file. The deponent was made to sign the fax that the deponent shall withdraw the application, and that the applicant shall hire the services of a lawyer, the applicant who has no work rights, how can he engage a lawyer, he made the applicant to sign the papers. The said person told the applicant he lodged the application before the Federal Court, ultimately he told the applicant that the application before the Federal Court is still pending. The applicant today on, May range the Court, and he was told that there is no application before the Federal Court. The deponent when received the letter of dismissal, upon this the deponent again contacted the said Migration Agent who filled up some forms for as he told the applicant that the Court will decide the matter, and that there is no need to appear before the Federal Magistrate Court. The applicant than discussed the matter with my friend. My friend put me in contact with some persons who have helped me to prepared these documents. The applicant wants to continue with my matter in the Court to the final hearing. Ifi had known that my matter would be dismissed if I did not file an amended application, I would have taken steps to file an amended application. However, I did not know that I needed to file an amended application until after my application was dismissed. When I received the letters from Australian Government Solicitors, I tried to read it, but I did not understand it, therefore I again went to the said Migration Agent who again told me that the matter is pending in the Federal Court of Australia, I was satisfied from this explanation, thanhe made me to sign some papers, I did not know what were these papers. The applicant is enclosing all the letters of the court and the Judgement of the Learned Federal Magistrate Court of Australia. The Migration Agent did not properly prepared my application for review before this honourable Court. I am a person who has the genuine fear of his life being taken away, along with his family. The applicant joined the Indian Communist Party, the applicant remained with them for more than four years. The applicant later on came to knew that this party is a group of the gangsters those who kidnap the peoples, to get the money, they were the hired murders, they had the links with the under world of India. The activities of these groups were of the nature that the applicant was unable to coup with them, the applicant when he was in know of all these facts the applicant decided to leave the party. When the applicant told them regarding the fact that the applicant is going to quit the applicant was threatened that if he leaves the party, he shall be killed along with family, there was and there is no protection available to the applicant, as such the applicant decided to flee from the country. The Indian Communist Party has long hands, they are having the co-operation of the known politicians in India, they have a lot of influence over the authorities, as such the applicants and his family is in great danger of being killed if the applicant goes or sent back to India. The respondents did not took in to consideration theses circumstances, which have led to the jurisdictional and legal error, as the applicants claim was not given any consideration. The applicants case was not properly dealt in the particular circumstances, as such there is the violation of natural justice the whole readings of the claim shall represent the situation of the applicant. The applicant appeared before the respondent number two, but the evidence was ignored which is a violation of the law. The contents of this Affidavit are true and the grounds of the application are also correct. The applicant requests that the delay if any may kindly be waived off as the applicant is nota person who knows the law, the other matters which have been explained above may kindly be considered in the interest of the natural justice
Rule 16.05 of the Federal Magistrate Court Rules Provides:
…
In my circumstances, I seek the consent of the respondent to set aside the order of the court entered on 03 May 2007
If the respondent does not consent:
a) The order entered on 03 May 2007, because it arose from a self-executing order of the court on on which occasion I was not present in the court ), was made in my absence
b) The order entered on 03 May 2007 was an interlocutory order.
I only speak little English. This Affidavit was prepared by the help of my friend who can speak my language.”
The Applicant gave sworn evidence to the Court this morning that there was nothing in the contents of his affidavit that he wished to amend or change. Ms Griffin, who appeared for the First Respondent, cross-examined the Applicant on the content of his affidavit.
In particular, the Applicant stated in his affidavit that part of the reason for his failure to appear on the last occasion was because he was misguided by his migration agent who told him there was no need to appear before the Court. In cross-examination the Applicant admitted that he had been told not to appear at Court by a friend of a friend whom he did not know. The Applicant stated that he did not know whether or not that friend of a friend was a migration agent.
The Applicant also stated in his affidavit that if he had known his matter would be dismissed because he did not file an amended application, he would have taken steps to file an amended application. He said that he did not know that he needed to file an amended application until after his application was dismissed. However, in cross-examination the Applicant acknowledged that he had attended the directions hearing, received and had explained to him Orders made by this Court on 26 October 2006 on which occasion he was given leave to file an amended application and his matter was set down for hearing on 2 February 2007.
On behalf of the First Respondent, Ms Griffin submitted that, contrary to what was said in the Applicant's affidavit: the Applicant was not misguided by his migration agent; there did not appear to be any issue of fraud, negligence or breach of contract in respect of a migration agent; and there is no reasonable explanation for the 12 months delay between 3 May 2007, when this Court dismissed his application to set aside Orders made by it on 2 February 2007, and the filing of the motion subject of this proceeding. The First Respondent submitted that the only explanation was that a friend of the Applicant had suggested that the applicants file this Notice of Motion to obtain further visas.
On behalf of the First Respondent, Ms Griffin submitted that the Notice of Motion should be dismissed and that the Court should have regard to the public interest in the finality of litigation. Ms Griffin acknowledged the tension between the Court's obligation to ensure litigants have an opportunity to be heard and the public interest in the expeditious conduct of litigation.
In the circumstances of this case, the applicants have failed to appear before the Court on two prior occasions and in each case the Court has not been satisfied by any explanation proffered by the applicants. When the Orders, the subject of this proceeding, were made on 3 May 2007 Reasons were given by this Court that had regard to both the Applicant’s explanation and the utility in making any order for reinstatement.
Having regard to the Applicant's answers in cross-examination this morning, I do not accept the explanation provided by the Applicant in his affidavit as to why he did not appear on the last occasion. Moreover, there is no reasonable explanation for the 12 month delay in filing this Notice of Motion. The Applicant stated in cross-examination that he had taken no steps or made any inquiries about his proceedings and, indeed, had done nothing for 12 months until his friend suggested he file this Notice of Motion in May of this year in order to obtain a further visa.
There being no reasonable explanation, the applicants’ Notice of Motion filed on 30 May 2008 is dismissed.
The applicants, in their Notice of Motion, seek such further orders that the Court thinks fit. Having regard to: the history of the applicants’ proceeding for judicial review of the decision of the Refugee Review Tribunal dated 17 August 2006; the failure of the applicants to appear before the Court to prosecute those applications; the failure of the applicants to provide any reasonable explanation on any occasion for their failure to appear; and, in particular, for the complete inactivity on behalf of the applicants for 12 months following the dismissal by me on 3 May 2007 of the application, in my view the filing of this Notice of Motion is likely to bring the processes of this Court into disrepute and is an abuse of the processes of this Court.
Accordingly, it is appropriate that the Court order that no further application seeking judicial review of the decision of the Second Respondent, handed down on 17 August 2006, be accepted for filing by the applicants, or either of them, without leave of the Court.
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: 8 July 2008
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