SZMJZ v Minister for Immigration - [2009] FMCA 784

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJZ & ORS v MINISTER FOR IMMIGRATION
& ANOR (No.2)

[2009] FMCA 784

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Federal Magistrates Court Rules, rr.13.03C, 16.05

Migration Act 1958 (Cth), s.425

Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448
Taylor v Taylor (1979) 143 CLR 1

Applicants:

SZMJZ, SZMKA, SZMKB, SZMKC, SZMKD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1527 of 2008

Judgment of:

Barnes FM

Hearing date:

7 August 2009

Delivered at:

Sydney

Delivered on:

7 August 2009

REPRESENTATION

Applicants:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application in a case filed on 30 July 2009 be dismissed.
The first and second applicants pay the costs of the first respondent fixed in the sum of $1,350.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1527 OF 2008

SZMJZ, SZMKA, SZMKB, SZMKC, SZMKD

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application in the case filed by the applicants on 30 July 2009 seeking that orders made by me on 28 January 2009 pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules dismissing an application for review of a decision of the Refugee Review Tribunal not to grant the applicants protection visas be set aside. The application was dismissed as there was no appearance by or on behalf of the applicants.
The background to these proceedings is that the applicants, who last arrived in Australia in 2004 and 2005, applied for protection visas in November 2006. The applications were refused and the applicants sought review by the Tribunal in December 2006. In its reasons for decision the Tribunal recorded that the applicants did not attend the Tribunal hearing. It affirmed the decision of the delegate not to grant the first applicant in these proceedings a protection visa. As the fate of the applications of the other applicants depended on the outcome of the first applicant’s application, the Tribunal also affirmed the decision in relation to those applicants.
The applicants, who are husband and wife and three children, sought review of the Tribunal decision by application filed in this Court on 16 June 2008. I note that this was over 12 months after the time of the Tribunal decision, although no issue is taken in that respect today.
The applicants claimed that the Tribunal failed to invite the second applicant (that is the applicant wife) to a hearing according to the law and that the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth). The accompanying affidavit explained that the applicant had only been “advised” a month beforehand that there was a jurisdictional error in the decision.
It is apparent from the Court file that the primary applicant attended a directions hearing on 17 July 2008 with the assistance of a Korean interpreter. At that time he was offered legal advice under the legal advice scheme, but declined it on the basis that he would get his own lawyer. The matter was listed for hearing on 5 February 2009.
It became necessary for the Court to change the hearing date to 28 January 2009 at 10.15 am. The Court wrote to the applicant at the address for receiving mail provided on the application for review and also to the applicant’s home address, notifying of the change of hearing date and confirming the place and time.
As I noted in my judgment dismissing the application for non-appearance on 28 January 2009, an affidavit was filed in Court by the solicitor for the first respondent attesting to the fact that the first respondent’s submissions were sent by express post to the applicants at both the mail and home addresses, advising of the hearing date, time and place and indicating that if the applicants did not attend, the first respondent may seek to have the matter dismissed for non-appearance.
There was no appearance by the applicants on 28 January 2009 and there is no evidence of any attempt by the applicants to contact the Court or the solicitors for the first respondent in relation to that non-attendance.
However, on 30 July 2009 the applicants filed the present application in a case seeking that the dismissal be set aside and the application re-instated.
In an affidavit sworn on 30 July 2009 the first applicant stated that he did not receive any notification to invite him to a Tribunal hearing and nor did the second applicant and that the second applicant also did not receive any invitation to comment on information or on the Tribunal’s decision. He stated that he could not attend the Court on 28 January 2009 because an unnamed solicitor who was supposed to assist him in this matter could not help him due to his “unavoidable circumstances”.
Under rule 16.05(2)(a) of the Federal Magistrates Court Rules the Court may vary or set aside its judgment or order if made in the absence of a party. The first respondent does not consent to the orders being set aside. It is therefore necessary for the Court to determine whether it is appropriate to exercise its discretion under rule 16.05. Such discretion must be exercised judicially and with caution, although it is not so narrow or exceptional as to be virtually non-existent. An order may be set aside where it is in the interests of justice to do so (see Taylor v Taylor (1979) 143 CLR 1). It is relevant in a case such as this to take into account the reasons given for non-appearance, in particular, whether the applicants can show that by accident and without fault on their part the order was made in circumstances that warrant the exercise of the discretion.
It is also relevant to have regard to whether or not there was an arguable case or question raised by the applicants in the original application. In the present context that involves a consideration of whether there is any prospect of the applicants establishing a ground for review of the Tribunal decision, or whether it would be futile to set aside the orders dismissing the application for review (see Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448).
The first applicant was given the opportunity today to address the Court in relation to the reasons for non-attendance and also in relation to the grounds relied on in relation to the Tribunal decision.
In this case, the first applicant does not take issue with the change of hearing date. Rather, his explanation for non-attendance on 28 January 2009 is simply that the solicitor who was supposed to assist him could not help him due to his “unavoidable circumstances”. There is no indication on the Court file that the applicant was represented. Prior to the hearing the applicant neither filed any amended application nor any written submissions.
The first applicant was not required for cross-examination on his affidavit evidence in this respect. Accepting that his understanding was that he had a solicitor who he considered was supposed to “assist” him, that does not explain the applicant’s failure himself to attend the hearing on 28 January 2009 at which time it would have been open to him to seek an adjournment, or at least to otherwise contact the Court or the first respondent’s solicitors to explain why his solicitor’s inability to help him meant that he was unable to appear on 28 January 2009.
I am not persuaded that the inability of a solicitor who is not on the record to “help” the first applicant is a satisfactory explanation for the applicant's failure to appear or to provide an explanation at that time for his failure to appear on the date on which this matter was to be heard. I also consider it relevant to have regard to the fact that there is no evidence that the applicant took any further action in relation to these proceedings until he filed the application in the case on 30 July 2009.
I am not satisfied that the first applicant’s absence was by accident on his part without fault, such as to amount to circumstances that warrant the exercise of the discretion to set aside the dismissal of the review application.
Moreover nothing that the first applicant said in his initial application and affidavit, in submissions or in his affidavit filed in these proceedings, is such as to satisfy me that there is an arguable case on any of the grounds relied on that the Tribunal fell into jurisdictional error. He contended that he did not receive notification to invite him to a Tribunal hearing, notwithstanding that on the face of the Court Book he was invited by a letter addressed to the only address provided by him in the application for review. Insofar as he relies on a contention that his wife was not invited to a hearing, which may perhaps be on the basis that the hearing invitation letter was addressed to him, the application for review lodged with the Tribunal (which bears signatures for the second, third, fourth and fifth applicants) contains a declaration that unless the Tribunal was advised otherwise, those persons authorised the Tribunal to communicate with the first applicant about the application. In addition, the first applicant undertook to inform each other applicant of the contents of any communication from the Tribunal and to reply to the Tribunal for them. The hearing invitation letter addressed to him advised him to inform the other applicants about the letter and of the fact that any reply would be regarded as a joint response unless advised otherwise.
The first applicant made no submissions of substance, other than repeating his general concern about not receiving a hearing invitation. I am not persuaded on what he said or on the material before the Court, that there is an arguable ground of jurisdictional error on any basis relied on by the applicants.
In these circumstances and in light of the absence of a satisfactory and reasonable explanation for the non-appearance by the applicants at the hearing on 28 January 2009, I am not persuaded that it is in the interests of justice to set aside the orders made on that date. Accordingly the application in a case filed on 30 July 2009 should be dismissed.
It is appropriate that the applicants, having been unsuccessful, should meet the costs of the first respondent. However, as there are two adult and three child applicants, only the first and second applicants should meet the costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 21 August 2009