SZKHR and Anor v Minister for Immigration and Anor (No.2)
[2009] FMCA 276
•19 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHR & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 276 |
| MIGRATION – Refugee Review Tribunal – application to set aside Order dismissing proceeding by reason of applicants’ failure to appear at scheduled hearing – whether the grounds of the applicants’ application have any reasonable prospect of success – whether a later and differently constituted Refugee Review Tribunal was obliged to communicate with the applicants’ authorised recipient in relation to that review following remittal to the Refugee Review Tribunal – whether the applicants’ migration agent was authorised to act on behalf of the applicants and receive written communication in relation to all matters – whether the applicants’ migration agent was authorised by the applicants only to collect the decision of the earlier and differently constituted Refugee Review Tribunal. |
| Federal Magistrate's Court Rules 2001, r.13.03C(1)(c) Migration Act 1958 (Cth), ss.441G, 441G(1) |
| SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291 |
| First Applicant: | SZKHR |
| Second Applicant: | SZKHS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2427 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 March 2009 |
| Date of Last Submission: | 19 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Newman, Newman & Associates |
| Solicitors for the Respondent: | Mr G. Johnson, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2427 of 2008
| SZKHR |
First Applicant
| SZKHS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By way of motion, filed on 11 March 2009, the applicants seek an order that orders made by this Court on 5 March 2009 dismissing the application filed on 18 September 2008 be set aside. The application sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 June 2008.
The matter was set down for hearing before this Court by me on 13 October 2008 for hearing on 5 March 2009. At the scheduled hearing on 5 March 2009 there was no appearance by or on behalf of the applicants and, accordingly, the Court dismissed the proceeding pursuant to r.13.03C(1)(c) of the Federal Magistrate's Court Rules 2001 and I refer to the reasons that were published in respect of that decision as if they were set out here in full.
The applicants’ motion this afternoon is supported by the affidavit of Melvin Newman sworn 11 March 2009. Relevantly, the content of the affidavit is as follows:
“1. I am the applicants’ solicitor.
2. On Thursday 5 March 2009 I arrived at the John Maddison Tower at about 2.10pm prepared and expecting the applicants’ show cause application to be heard. I checked the list in the lobby and then discovered my error caused by a diarising mishap of mine. I do recall checking the time and date with the ecourt facility but can only assume that I was distracted and misread the time. I immediately telephoned Mr Greg Johnson of the Minister’s lawyers who told me that the application had been dismissed because of my non-attendance that morning. That morning I was on the train travelling to Central from the South Coast arriving at about 12.20pm. Upon my arrival I met the applicants’ migration agent for a discussion about the case before going to the Court building. I received no telephone calls on my mobile to alert me.
3. The point in dispute is a short one, and both sides have filed submissions. I believe the case for the applicants’ is sound and should be heard.
4. I apologise to the Court and to the Minister’s lawyers.”
The two matters for consideration by the Court involve consideration of the reasonableness of the explanation proffered by the applicants for their failure to appear at the scheduled hearing before this Court; and, second, satisfying the Court that there is at least an arguable case such that to make an order setting aside the Court's order of 5 March 2009 would not be futile.
In relation to the explanation for the failure of the applicants to appear at the hearing, such explanation is contained entirely within the affidavit of Mr Newman and is essentially that he was under the impression that the hearing was to commence on the afternoon of 5 March 2009 at 2.15 pm.
The orders setting the matter down for hearing made on 13 August 2008 are clear and explicit in their terms and, indeed, are bolded for the assistance of parties to ensure that they are aware of the date and time at which hearing is scheduled. Mr Newman did not attend that first court date although his appearance was mentioned by the solicitor for the first respondent. However, he does not suggest that the time scheduled was other than as in the orders, nor that he was told anything different to that effect by the first respondent's solicitor. At the heart of Mr Newman's explanation is that he misread the time and that, at the time the matter was scheduled to commence hearing, he was travelling in a train from the south coast so that he was not able to receive telephone calls on his mobile. As stated in my earlier reasons, attempts to contact Mr Newman on his office number and his mobile were made both by my chambers and the first respondent's legal representatives.
Mr Newman has also submitted this afternoon that this is the first time that he has missed a scheduled Court hearing, although he frankly acknowledges that he has not always been on time for every hearing in which he has been instructed. To my mind, it is imperative for any lawyer, and fundamental to the duty that any solicitor has to their clients, to ensure that they attend any scheduled hearing in respect of which they have received instructions to appear and I do not accept as reasonable the explanation offered by Mr Newman of his failure to appear.
However, in considering the overall interests of justice, there is no evidence before the Court to suggest that the applicants did not expect Mr Newman to attend the hearing on their behalf. Through no fault of the applicants, Mr Newman did not attend.
At the heart of Mr Newman's submission as to the jurisdictional error committed by the Tribunal in its decision dated 24 June 2008, is a submission that the applicants were denied natural justice by circumstances that prevented them from attending a hearing before the Tribunal at which they could present arguments and make submissions.
Mr Newman acknowledged that the applicants were sent a letter dated 15 May 2008 inviting them to attend a hearing on 24 June 2008 which they failed to attend. The letter dated 15 May 2008 was sent to the applicants’ migration agent as authorised recipient at the facsimile number identified by the migration agent on his form of appointment. The name of the migration agent is Mr Bimal Kumar Bhattarai. The document appointing Mr Bhattarai was received by the Tribunal on 7 March 2007 and appears to be signed by the applicant. There is no evidence before this Court to suggest that the applicant disputes the appointment of Mr Bhattarai as his migration agent. Further, Mr Newman does not suggest that the Tribunal was incorrect to communicate with Mr Bhattarai by facsimile transmission.
The only marking made on Part E of the document appointing Mr Bhattarai was the tick in answer to selecting that the applicant’s migration agent was authorised to act on behalf of the applicants and receive written communication in relation to all matters. There was no limitation on the scope of the authority to specific matters only, despite that option being open on the face of the document. Part E of that document was completed by the applicant as follows:
“Part E – Authorisation for migration agent to act on your behalf
12.My migration agent is authorised to act on my behalf and receive written communication (as permitted by law) in relation to: (tick one box only)
all matters þu Give details of the most recent application (eg. Student visa, employer sponsored migration, protection visa, etc.)
OR
for specific
matters only ¨u Give details of the type of application, sponsorship, monitoring or other matter”
Mr Newman submitted that the appointment of Mr Bhattarai as migration agent was only for the purpose of collecting the Tribunal's decision handed down on 26 June 2008 and was for no other purpose.
Mr Newman further conceded that the letter dated 15 May 2008, inviting the applicants to a hearing and faxed by the Tribunal to Mr Bhattarai, was sent by the Tribunal in accordance with s.441G of the Migration Act 1958 (Cth) (“the Act”).
Mr Newman submitted that, whilst the Mr Bhattarai was authorised to receive documents in connection with the review at the time of his appointment, the only act left that was in connection with the review was the collection of the Tribunal's decision. However, the form appointing the migration agent in no way confined the scope of the migration agent's authority in the way contended for by Mr Newman. On the face of the appointment, it is quite clear that the migration agent was appointed by the applicants for all matters and was not appointed only for a specific matter, despite the fact that such an opportunity was open on the face of the document. There is no other evidence to support Mr Newman’s submission.
Mr Newman submitted that the Tribunal's review was concluded and, therefore, the only act to which the appointment could refer was the collection of the Tribunal's decision. However, the accepted jurisprudence in relation to the Tribunal's obligation to conduct a review is that it is required to conduct a review according to law and, until such time as the Tribunal has completed a valid review and made a decision according to law, the review is not complete (SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291 at [39]).
In the circumstances, I am not satisfied that the application as expanded upon by Mr Newman this afternoon has any, or any reasonable, prospects of success and, for that reason, the applicants’ motion is refused.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 30 March 2009
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