SZNBU v Minister for Immigration
[2005] FMCA 490
•5 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBU v MINISTER FOR IMMIGRATION | [2005] FMCA 490 |
| MIGRATION – Application to set aside dismissal for non–appearance. |
| Taylor v Taylor (1979) 143 CLR 1 Lie v Minister for Immigration & Multicultural Affairs [2001] FCA 1448 |
| Applicant: | SZNBU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2029 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 5 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2029 of 2003
| SZNBU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on 23 March 2005 pursuant to Rule 16.05 of the Federal Magistrates Court Rules seeking that an order dismissing the applicant's application for review of a decision of the Refugee Review Tribunal be set aside.
The background to this application is that the Tribunal handed down a decision on 10 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant filed an application seeking review of that decision in this court on 1 October 2003.
He attended a directions hearing on 28 January 2004, with the assistance of a Nepalese interpreter. Orders were made by consent, including an order that he file and serve any amended application and any affidavit material he intended to rely on by 3 March 2004; that he file and serve written submissions five clear working days prior to the hearing; and that the matter be listed for hearing at 2:15pm on
22 March 2005. However, he did not file and serve any amended application or any affidavit material.Subsequently, a notice of motion was filed by the respondent on
1 December 2004, seeking orders that the proceedings be dismissed pursuant to Rule 13.10(a) as disclosing no reasonable cause of action. The notice of motion was listed for hearing at 10:15am on 16 February 2005.A solicitor for the respondent filed an affidavit on that date, annexing a copy of a letter sent to the applicant on 6 December 2004 serving the notice of motion and an accompanying affidavit, and advising him of the listing at 10:15am on 16 February 2005. The letter noted that should the applicant fail to attend the respondent would seek to have the matter dismissed and an order for costs.
A file note records that the solicitor for the respondent called the Federal Court Registry to check the applicant’s address for service.
At this time the applicant’s address for service was the address on the original application and this was the address to which the letter was sent.There is nothing on the court file to suggest that at that time, or indeed, prior to 23 March 2005, there was any notification to the Court by the applicant, whether by way of form or letter or otherwise of any change of address. On 23 March 2005 a notice of change of address dated
23 March 2005 was filed.The applicant did not attend on 16 February 2005 and his application was dismissed pursuant to Rule 13.03A(c). The respondent's solicitors were ordered to notify him of the orders made and of the provisions of Rule 16.05. They did so by letter of 16 February 2005, sent to the same address for service as was on the applicant's original application. A sealed copy of the orders was sent by letter of 25 February 2005.
As I have indicated, the application before the court today is an application filed on 23 March 2005 by the applicant. He states that he would like to have the matter heard in his presence and to give oral evidence to support his case, that he was not aware of the hearing date that was changed and that he assumed it was at 2:15pm on 22 March 2005. He claimed that he appeared at court on the given date, but that his application had been dismissed in his absence.
He provided an affidavit to the same effect, stating that he did not intend to miss the opportunity to appear at the hearing, and:
I was not aware of my hearing date that was changed, as I've moved to a different place and I was a bit late to inform of my new address. I assumed my hearing date was at 2.15 pm on 22 March 2005, according to short minute of order. I didn't know what to do because of my language.
In the hearing today the applicant gave oral evidence about the circumstances in which he had failed to attend the hearing of the notice of motion. He claimed that he did not receive a letter from the respondent advising him of the hearing of the notice of motion on
16 February 2005. He claimed that he had moved from his former address. He was unable to tell the court precisely when that move occurred, other than that it was in November or December 2004 and was some five months ago.He also claimed that he had notified the court of his change of address and that when he said in his affidavit that he was ‘a bit late’ he meant that it took about two weeks to notify the court. However, he later claimed that in fact a friend had notified the court on his behalf. He claimed that he obtained a form through his friend and filled it in and gave it to the friend to be posted to the court. There was no evidence from any such friend before the court and, importantly, the applicant was not able to provide the court with a copy of any such notification of change of address. Indeed he did not claim that he had a copy of any such notification of change of address.
He claimed to have some confusion because of his language difficulties but was not able to clarify precisely what the nature of such confusion was, except that when asked if he meant that he hadn't understood a letter he then said he hadn't understood documents but did not receive a letter.
The applicant was also asked the nature of his concern about the Tribunal decision and to identify any claim about jurisdictional error. He said that he had explained the problem in Nepal to the Tribunal and that the Tribunal did not believe him. He went on to address further his fears about the situation in Nepal and for his safety if he returned.
The court has power under Rule 16.05(2) to set aside an order made dismissing an application, relevantly where the order is made in the absence of the applicant. The power is expressed in general terms.
It is a discretionary power. It is clear that in this case the 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 to set aside the orders that were made on 16 February 2005 and entered on 23 February 2005. The power 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, Taylor v Taylor (1979) 143 CLR 1.Factors to be taken into account are the reasons for non-appearance and whether the applicant is able to show that by accident or without fault on his part, the order was made in circumstances that warrant the exercise of the discretion. It is also relevant to consider whether setting aside any order would be futile, whether there is an arguable case or question raised by the applicant. I have had regard to what Emmett J said in Lie v MIMA [2001] FCA 1448. In refusing to set aside a dismissal for non-appearance his Honour took into account the fact that nothing indicated that the applicant had any prospect of establishing any ground for review of the Tribunal decision.
Considering first the applicant's reasons for non-appearance, the applicant claimed that he moved and did not receive the letter sent to the address for service provided on his original application. However, he also claimed that he notified the court of his new address for service some two weeks after his move during November or December 2004. While I accept that the applicant moved and did not receive the letter notifying him of the date for the hearing of the notice of motion, I have some concern about his uncorroborated claim that he notified the court of a new address for service in November or December 2004. There was no notification of any kind whether orally or in writing on the court file. There is no evidence of service on the respondent’s solicitors of such a notice of change of address. I accept that, based on the affidavit evidence of the respondent, the notification of the hearing of the notice of motion was sent by them to the only address notified to them for the applicant. The applicant makes an unsupported claim that he notified the court of a change of address but is not able to provide the court with a copy of the notification. The applicant did not attend on 16 February 2005 and there is no record that he contact the court prior to filing the application on 23 March 2005.
In those circumstances, given the vagueness and lack of clarity in the applicant's evidence in relation to moving and notifying the court, I am not satisfied that he did in fact file a notice of change of address with the court prior to the notice of change of address filed on 23 March 2005 which was also dated 23 March 2005. Indeed, had the applicant already filed a notice of change of address there would have been no need for the notice of change of address filed on 23 March 2005. He has not established that the order of 16 February 2005 was made in his absence without fault on his part. He was obliged (as he is aware) to file and serve a notice of change of address (in fact rule 6.02 requires this to be done within 7 days of the change). He has not established that he did so prior to 23 March 2005.
Nonetheless, I have considered the prospects of the applicant's success in his application for judicial review. Even if I am wrong and his failure to attend on 16 February 2005 was accidental or without fault on his part, it is still relevant to consider, in exercising my discretion, his prospects of success. It is relevant as part of all of the circumstances to consider whether it would be futile to set aside the application. I have considered the basis for the applicant's claim that the Tribunal fell into jurisdictional error. The application for review of the Tribunal decision filed on 1 October 2003 stated that the applicant disagreed with the decision, that it involved an error of law and that the member:
was really reluctant to my oral evidence in relation to my fear of persecution and personal circumstances.
Clearly, as expressed, these grounds do not raise any arguable jurisdictional error. No error of law is identified and a disagreement with the merits of the decision (a disagreement which the applicant pursued in oral submissions today) does not establish any arguable case of jurisdictional error. The application also contained a ground which raises issues of procedural fairness. It is as follows:
I wasn't informed of independent countries information in detail. The information that I was explained was only related to the partly basis of the country (sic) it may be adverse to the circumstances I have and be a victim of it.
The mere fact that a claim is expressed to raise a claim, such as a lack of procedural fairness or a breach of the Migration Act 1958 (C’th), that may constitute a jurisdictional error if established, is not such as to satisfy me that there is an arguable case or that the applicant has any prospects of success in this instance.
It is relevant in this regard that the applicant did not, despite the orders made at the directions hearing, file any affidavit material by the specified date of 3 March 2004. Nor (accepting his claim that he understood the hearing was on 22 March 2005) did he file any written submissions in accordance with those orders. In other words, in light of the applicant’s claim that he proceeded on the basis that the hearing was to be on 22 March 2005, the court has before it the evidence that the applicant intended to rely on at that date. In that respect it is relevant that there is no transcript of the Tribunal hearing before the court. The applicant did not clarify the basis for his claim about independent information in oral submissions.
This is not a case in which the applicant has established any prospect of success for an argument that he was denied procedural fairness or that there was a breach of the Migration Act constituting jurisdictional error on the basis that particular independent country information was not brought to his attention. (This is so whatever the effect of s.422B of the Migration Act). The Tribunal reasons for decision refer to what occurred at the hearing and describe some independent information brought to the applicant's attention, although the summary of what occurred does not make reference to all of the items of independent country information relied on by the Tribunal in its reasons for decision. The Tribunal reasons do not purport, however, to be a complete account of what occurred at the Tribunal hearing and I note in that respect that the Tribunal stated that credibility issues were put to the applicant. It cannot be inferred on the evidence the applicant proposed to rely on that particular information was not put to him. Insofar as this ground raises s.424A(1) such independent country information would be within the s.424A(3)(a) exception.
In these circumstances, given the generally expressed and unclarified application for review and the contents of the Tribunal reasons for decision, and in the absence of any transcript or other evidence (the applicant having been ordered to file any further affidavit evidence by 3 March 2004) there is nothing before the court to indicate that the applicant has any prospect of establishing such ground of review. He has not put anything before the court today to establish that he has any prospect of establishing this or any ground for review of the Tribunal decision. He has not elaborated on the basis for his claims despite being given the opportunity to do so. In particular he did not identify what information was allegedly not put to him. Merits review is not available, as I explained to the applicant, and the applicant's concerns about the present situation in Nepal do not establish any basis for an arguable claim of jurisdictional error.
The applicant had claimed to fear harm from the Nepalese army and from the Maoists. The Tribunal rejected his claim to have been a Maoist, or a communist, based on the generalised and vague nature of his claims and his lack of knowledge. It addressed each of the other claims that he made and there is nothing on the material before me suggest that the findings that it made were not open to it on the material before it. On the material before the Court there is nothing to indicate that the applicant has any prospect of establishing any ground for review of the Tribunal decision.
In those circumstances I consider that it would be futile to set aside the orders that the court made dismissing his application for non-appearance. I am not satisfied that this is a case in which it is in the interests of justice that I should exercise my discretion under Rule 16.05 to set aside the orders made by me on 16 February 2005. Hence the application that is now brought by the applicant should be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The respondent seeks that he meet the costs of today. There is nothing in the circumstances before me to warrant departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. His lack of money is not a reason for not awarding costs, although it may be something taken into account by the respondent in determining when and how to seek to recover costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 April 2005
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