SZLDH v Minister for Immigration & Anor (No.2)
[2007] FMCA 2122
•19 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDH v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 2122 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where application had been dismissed under Rule 13.03A. PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgement – where applicant had not attended court on the hearing day – no satisfactory explanation for failure to attend court – substantive application does not disclose any arguable case – reinstatement futile. |
| Migration Act 1958 (Cth) ss.424A, 477, 486D Federal Magistrates Court Rules 2001, r.13.03A |
| SZLDH v Minister for Immigration & Anor [2007] FMCA 1601 referred to S1174/2002 v Refugee Review Tribunal and Anor [2004] FCA 289 referred to Lindon v Commonwealth of Australia (No.2) (1996) 136 ALR 251 followed SZBRB v Minister for Immigration [2004] FMCA 285 followed SZCPY & Anor v Minister for Immigration [2004] FMCA 646 followed NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 followed SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed |
| Applicant: | SZLDH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITISZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2374 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 December 2007 |
| Date of Last Submission: | 17 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Appearance for the Applicant: | In Person via telephone |
| Counsel for the Respondents: | Nil |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $800.00 and I allow 3 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2374 of 2007
| SZLDH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
The applicant is a citizen of India who asks the court to set aside an order made on 10th September 2007, dismissing his application for review of a decision of the Refugee Review Tribunal. The application was dismissed under Rule 13.03A because the applicant did not attend the hearing[1].
[1] SZLDH v Minister for Immigration & Anor [2007] FMCA 1601
The Minister, who is the first respondent, opposes the application for two reasons:
(1)Because the applicant has not given a reasonable explanation for his earlier failure to attend court; and
(2)Because it would be futile to restore the application to the list, as it has no reasonable prospects of success.
Background
The applicant commenced proceedings in this court on 1st August 2007, by filing an application and an affidavit in support. The application is an application under the Migration Act seeking review of a decision of the Refugee Review Tribunal made on 6th April 1999. By a Response, filed on 13th August 2007, the Minister's lawyers oppose the application on five grounds:
i)That the Court lacks jurisdiction to hear the application.
ii)That there has been delay in seeking a remedy.
iii)That there are or have been other judicial review proceedings in relation to the decision.
iv)That the Applicant has not complied with s 486D(1) of the Migration Act 1958 by failing to disclose prior proceedings for judicial review in respect of the decision under review.
v)That the application has not raised an arguable ground for the relief claimed.
The application rather surprisingly seeks review of a decision dated 6th April 1999. It contains a surprising number of grounds, some 87 in all. The grounds appear to be more in the nature of a submission, and the applicant subsequently filed in court a 14 page document entitled “Applicant’s Submission on Competency”, which contains in 55 paragraphs what is set out in the 87 purported grounds, with the exception that the ground under s 424A of the Migration Act was omitted.
The application came before the court for the first time on 3rd September 2007. At the request of the solicitor for the Minister, I listed the application for a show cause hearing the following week, on Monday 10th September 2007.
The applicant did not attend on 10th September and I dismissed the application with costs under Rule 13.03A.
The applicant then filed a Notice of Motion and an affidavit in support on 21st November 2007. In the Notice of Motion he asked the court for orders:
(a)vacating the orders that I made on 10th September 2007;
(b)reinstating his application for hearing;
(c)issuing a writ of certiorari “removing” the decision of the Refugee Review Tribunal;
(d)issuing an order in the nature of prohibition against the Minister;
(e)issuing an order in the nature of mandamus directed to the Refugee Review Tribunal; and
(f)costs.
In his affidavit in support of the Notice of Motion, sworn on 16th November 2007, the applicant gave this explanation for his failure to appear:
I was not able to attend the hearing and the matter was dismissed in my absence.
On 10 September 2007 I could not arrive at the Court. I was very much sick at that day and the other reason is that I was also very much mentally distressed to the fact that my father was admitted to the hospital on the 1st week of September 2007. His condition was very much critical as he had a massive heart attack. I was completely frustrates, distressed and physically unable to move to the Court for the hearing. Therefore the matter was dismissed. I was told to file the notice of motion.
I do not speak read or write English. I am filing this application by the advice of one of my friends.[2]
[2] Applicant’s affidavit sworn 16 November 2007, paragraphs 2, 3 and 4
The Notice of Motion was listed at 11:30 am on Monday 3rd December 2007. The applicant did not attend. However, he had on 29th November faxed a medical certificate to the court from a Dr Peter Calaizis, saying:
This man was seen today. He tells me he has been depressed and there have been some life effects that have worsen (sic) his problem. Clinically he does seem to have a dull affect. He has asked me to write this note to support his extension with regards to his meeting with the Immigration Department. I think his request his reasonable and if this can be extended then this would be most beneficial to him.
Whilst the letter from Dr Calaizis hardly contains an in-depth diagnosis, and in fairness I infer that the applicant has not been a regular patient, I was prepared to adjourn the matter until 17th December 2007.
The applicant sought leave to attend the hearing by telephone and requested the assistance of a Punjabi interpreter. I acceded to both those requests.
The Notice of Motion
The applicant told the court that he had not attended the court on 10th September 2007 because he was very upset about the death of his father in India. He originally said that 15 or 16 days had passed since his father’s death, and then revised that estimate to a date in November. Eventually he said that his father had died on 15th November. He said that he was not aware of all the details at the time but found out later that his father’s medical condition was quite bad.
The applicant told the court that he had been taking medication for depression and said that he had not been out of the house because he is depressed. He said that he had asked a friend to ring the court to say that he was unable to attend on 10th September, but he did not know whether the friend had done so or not. The friend is presently in Melbourne.
The applicant conceded that his earlier application for review of the Tribunal decision had been dismissed by Emmett J in the Federal Court in February 2004. However, he said that he had lodged “another appeal”, but did not mention with which court.
When asked by the Bench why he had taken so long to commence proceedings for review of a decision made eight years previously, the applicant said that he had relocated within Australia during that time and mail may not have reached him.
For the Minister, Mrs Combes opposed reinstatement of the application because:
(a)the applicant had not given a reasonable explanation for his absence from court, as he had attended court in person only a week earlier, on 3rd September; and
(b)reinstatement would be futile, because the application had no prospects of success.
In this regard, Mrs Combes relied on an affidavit by Andras Markus, affirmed and filed on 23rd August 2007. Mr Markus deposed that he is a Senior Executive Lawyer and Special Counsel employed by the Australian Government Solicitor and he has had carriage of the matter before the court on behalf of the Minister. He had also had carriage of certain proceedings brought against the Commonwealth and others in the High Court of Australia called Muin v Refugee Review Tribunal and Ors, S36 of 1999.
In his affidavit, Mr Markus deposed that the applicant was joined as a represented party to the Muin proceedings on 2nd June 2000. After orders were made by Gaudron J in the High Court on 25th November 2002, the applicant then commenced proceedings in his own name on 29th May 2003. The application for orders nisi was remitted to the Federal Court of Australia and on 20th February 2004 Emmett J refused the application (S1174/2002 v RRT and Anor[3]).
[3] [2004] FCA 289
The Principles to be applied
When considering an application for reinstatement of a matter that has been dismissed because a party did not attend the hearing, the court must consider:
(a)whether the party who seeks reinstatement has provided a reasonable and adequate explanation for missing the hearing; and
(b)whether the merits of the substantive application warrant setting aside the earlier judgment.
Whilst even a weak case is entitled to the time of a court (Lindon v Commonwealth of Australia (No.2)[4] it is also the case that where there are no prospects of a substantive application an application for reinstatement should be refused because reinstatement would be futile (SZBRB v Minister for Immigration[5]; SZCPY & Anor v Minister for Immigration[6] and SZITC v Minister for Immigration[7]).
[4] (1996) 136 ALR 251
[5] [2004] FMCA 285
[6] [2004] FMCA 646
[7] [2007] FMCA 424
First, I am not satisfied that the applicant has given a reasonable explanation of his failure to attend court. He knew the matter was in the list for hearing on 10th September 2007, because he had been in court the previous week when it was adjourned for hearing. The applicant may well have been concerned about his father’s health, but he could hardly have forgotten that he was required to go to court. He claims to have asked a friend to ring the court for him, but appears not to have checked to see whether the friend did so.
The applicant also claims to have been suffering from depression, but seems not to have consulted any medical practitioner until he saw Dr Calaizis on 29th November. He also told the court that he was depressed about the recent death of his father but was unable to be at all precise about the date.
I find that the applicant has not provided any reasonable explanation of his failure to attend court.
In any event, I am also satisfied that the applicant does not have an arguable case for review of the decision of the Refugee Review Tribunal. According to the Tribunal decision, the applicant elected not to attend the Tribunal hearing. The Tribunal noted that the applicant wrote to the Tribunal on 15th March 1999, saying:
I cannot come to the hearing because I am mentally upset. Please make the decision what ever you want because I don’t know what’s going on with me.[8]
[8] Refugee Review Tribunal decision 6 April 1999, page 4
The Tribunal dismissed the application because it found that:
The applicant’s claims are so general and lacking in detail that the Tribunal is unable to establish the relevant facts.[9]
[9] Refugee Review Tribunal decision 6 April 1999, page 6
It is well established that in cases where an applicant, after having been informed that the Tribunal was unable to make a decision in the applicant’s failure on the basis of the information before it, chooses not to attend a hearing and elaborate on that information, the inevitable consequence will be the rejection of the application (NAVX v Minister for Immigration & Multicultural & Indigenous Affairs[10], cited by Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[11] at [16]).
[10] [2004] FCAFC 287
[11] [2005] FCA 1306
The applicant’s claim in his application that the Tribunal fell into jurisdictional error by failing to comply with s 424A of the Migration Act cannot be maintained. The Tribunal made its decision on 6th April 1999 and s 424A of the Migration Act did not commence until 1st June 1999, after the decision was made.
The applicant’s other grounds, when summarised, appear to be:
(1)Section 477(1) of the Migration Act is invalid.
(2)Section 486A of the Migration Act is invalid.
(3)The principle of jus cogens applies.
(4)The principle of jus gentium applies.
(5)The court has jurisdiction.
It is unnecessary for me to consider any of those grounds.
The applicant has also argued in his affidavit, sworn on 16th November 2007, that he believes he has a strong case. He stated that he would like to run the arguments that the Tribunal did not apply the “real chance” test or the “reasonable internal relocation” test when deciding his case. The applicant did not include those arguments in his application filed on 1st August 2007. In the circumstances of the Tribunal dismissing his application on the basis that he had not attended the hearing and the Tribunal was not satisfied as to the sufficiency of his evidence, the applicant’s new purported grounds are not sustainable.
The applicant has already instituted proceedings for judicial review, in both the High Court of Australia and the Federal Court. The Federal Court has dismissed his application for an order nisi on 20th February 2004.
The applicant appears to have done nothing between 20th February 2004 and 1st August 2007, when he commenced these totally meritless proceedings. It is clear that the substantive application does not disclose any arguable case at all.
One can only speculate why the Minister’s Department has not taken steps to remove the applicant from Australia during the last three years.
The application for reinstatement is without merit. The applicant has neither given any proper explanation for his failure to attend court, not has his substantive application any merit whatsoever. Reinstatement would be futile.
The application is dismissed.
In my view, this is an appropriate matter for a costs order and I propose to order that the Applicant pay the First Respondent's costs.
I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 19 December 2007
Corrections – Amendments to reasons for judgment
Paragraph 24 page 6:
In any event, I am also satisfied that the applicant does not have an arguable case for review of the decision of the Refugee Review Tribunal. According to the Tribunal decision, the applicant elected not to attend the Tribunal hearing. The Tribunal noted that the applicant wrote to the Tribunal on 15th March 1999, saying:
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