SZKGD v Minister for Immigration

[2009] FMCA 133

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKGD v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 133

MIGRATION – RRT decision – second application for judicial review – dismissed for non-attendance at first court date – application to vacate order – no appearance by applicant – inadequate explanations for absence and lack of merit – application refused – costs awarded on an indemnity basis.

Federal Magistrates Court Rules 2001 (Cth), r.16.05(2)(a)
Migration Act 1958 (Cth)

SZKGD v Ministerfor Immigration [2007] FMCA 1610
SZKGD v Minister for Immigration & Citizenship [2008] FCA 363

Applicant: SZKGD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2780 of 2008

Judgment of: Smith FM

Hearing date: 17 February 2009

Delivered at: Sydney

Delivered on: 17 February 2009

REPRESENTATION

Counsel for the Applicant: No Appearance

Counsel for the First Respondent: Ms K Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant’s application under r.16.05(2)(a) to set aside orders made on 18 November 2008 is refused under Rule 13.03C(1)(c) due to his absence from the hearing.

2. The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2780 of 2008

SZKGD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in 2005 as the holder of a Student Dependant Visa which was due to expire in 2007.  Cancellation of his visa came under consideration, after his spouse informed the Department that her relationship had ceased. 

2. The applicant then applied for a Protection Visa in October 2006.  He claimed that he feared persecution in India due to an association with a Sikh Student Movement.  His application was refused by a delegate on 15 November 2006.  The applicant appealed to the Refugee Review Tribunal, which handed down a decision on 1 February 2007 affirming the delegate's decision. 

3. In its statement of reasons, the Tribunal said that the applicant had not attended a hearing to which he was invited.  It gave the simple and impregnable reason for its decision: that it was unable to be satisfied upon claims which were extremely vague, general and lacking in details.   

4. The applicant sought judicial review in this Court, where he was represented by a solicitor, Mr Jack Singh of Jack Singh & Associates.  Mr Singh presented grounds which were notable for their obscurity and absence of particulars of alleged jurisdictional errors.  Turner FM considered all of them, and dismissed the application on 17 September 2007 (see SZKGD v Ministerfor Immigration [2007] FMCA 1610). His Honour concluded at [50] that the Tribunal's decision was a privative clause decision, since it was not infected with jurisdictional error. This Court therefore had no jurisdiction, by reason of s.474(1) of the Migration Act.

5. His Honour's judgment was upheld by Goldberg J on 27 February 2008 (see SZKGD v Minister for Immigration & Citizenship [2008] FCA 363). The applicant was unrepresented before his Honour, and did not attend the appointed hearing. However, Goldberg J considered some additional material put forward by the applicant to explain his absence from the Tribunal's hearing. He was satisfied that there was no improper exercise of power, nor any error of law, infecting the decision of the Tribunal or the decision of the Federal Magistrate.

6. The applicant then commenced his present proceeding, again invoking this Court's jurisdiction under the Migration Act in relation to the same decision of the Tribunal. His application contains grounds for review in exactly the same style, if not the exact words, of his previous application presented by Mr Singh. On its face, it does not appear to me to raise any arguable case for the orders it seeks. Moreover, it faces obvious difficulties of res judicata and Anshun estoppel, arising from the previous litigation.  It appears to me to be an abuse of process. 

7. That application was returnable before me at a first Court date on 18 November 2008.  Prior to that date, the Minister's solicitor had written to the applicant informing him that they would be seeking an immediate hearing under r.44.12 of the Federal Magistrates Rules, on the contention that his application did not raise an arguable case for the relief sought.  However, there was no appearance by, or on behalf of, the applicant on that day. 

8. On the same morning, the applicant sent a facsimile to the Court, and to the Minister's solicitors, which appeared to seek an adjournment.  The letter said:

   Now most respectfully I say that I can not attend the directions hearing on 18 November 2008 as I am at present in near Melbourne as I came to see my friends.  I do not have any money to engage a solicitor or barrister and even I cannot afford to come to Sydney.  I also submit that I am not working as I do not have work rights.

9. The preparation of this letter appears to have involved Mr Singh, since the facsimile has an annotation referring to him as the owner of a facsimile machine involved in its transmission.  There is also a notation that it was dispatched at some stage from "Conti Orchards" in Victoria.  An inference might be that the letter was composed by Mr Singh, sent to the applicant for signature, and forwarded to the Court by the applicant using a machine at Conti Orchards.  As I shall explain, whether this is so has not been able to be explored with the applicant in his present application. 

10. I was not satisfied that this letter provided an acceptable reason for the absence of the applicant, nor for an adjournment, particularly in view of the warning given to the applicant by the respondents’ solicitor, and the prima facie absence of merit.  I therefore dismissed the application under r.13.03C(1)(c).  I gave reasons which were recorded.

11. His present application was filed on 30 January 2009 and seeks to set aside the orders I made on 18 November 2008. It is appropriate to treat it as an application under r.16.05(2)(a) to set aside an order made in the absence of a party.

12. The applicant attempts to explain his delay in bringing the application, and it also appears that he first attempted to appeal to the Federal Court. He also provides an explanation for his absence on 18 November 2008.  The explanation is in marked contrast with the letter which was faxed to the Court on that day.  His affidavit purportedly sworn on 29 December 2008, without an interpreter’s certificate, asserts:

    2. That I did not appear before the Honourable Federal Magistrates Court on 18 November 2008 as I was sick on that day and neither I could engage a lawyer as I am not working and I do not have any money to pay to the lawyer. 

13. The affidavit attaches no corroboration of the alleged sickness. However, this explanation, as with his previous explanation, was not able to be explored today since the applicant has not attended.  He has not made any communication to explain his absence today, although I am informed that Mr Singh has made a telephone inquiry about the matter with the respondents’ solicitors.

14. I am not satisfied on the material before me, particularly in the absence of the applicant, that there is any reason for setting aside my previous order.  I am not satisfied that the applicant has adequately explained his absence on 18 November or today.  Moreover, I am not satisfied that the substantive matter has merit which would justify setting aside my previous orders.  I therefore propose to refuse the application before me, again on the ground of the absence of the applicant. 

15. If the applicant genuinely wishes to bring a meritorious case in this Court concerning his protection visa application, it will be necessary for him better to explain his absences from hearings, and also the merits of his litigation.

16. I note that I am concerned, in this case, at the possible involvement of a solicitor previously employed by the applicant, in assisting him to protract proceedings which might appear to be abusive.

17. In relation to costs, the Minister seeks costs on an indemnity basis today.  I shall accede to this application, in view of my findings above as to the abusive nature of the proceedings, and the applicant's history of non attendances which suggests that the litigation is being brought with an awareness of its lack of merits. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  25 February 2009