SZNFE v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFE v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 181
MIGRATION – Application to set aside orders dismissing an application for review of a decision of the Refugee Review Tribunal and an application that the matter be transferred to the Federal Court of Australia pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules– whether in interests of justice to set aside orders – explanation for the applicant’s non-appearance – whether futile to set aside orders.
Migration Act 1958 (Cth), ss.65, 91S, 189, 414, 415, 424, 424A, 425, 426A, 430, 476
Federal Magistrates Court Rules, rr.13.03C, 16.05

AB v Federal Commissioner of Taxation (1998) 157 ALR 510; 98 ATC 5100
Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448
Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; [2007] FCA 1318
Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZLFX (2009) 83 ALJR 1029; [2009] HCA 31
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
MZXTA v Minister for Immigration and Citizenship and Another (2009) 112 ALD 89; [2009] FCA 1186

NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAOX and Another v Minister for Immigration & Citizenshipand Another (2009) 112 ALD 54; [2009] FCA 1056
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 485; [2006] HCA 61

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35
SZGUW…

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Details
Case
[2010] FMCA 181
Decision Date

CaseChat Overview and Summary

In the case of SZNFE v Minister for Immigration, the applicant, SZNFE, sought to set aside orders made by the court on 22 October 2009 due to non-appearance at a hearing. SZNFE argued that the Federal Magistrates Court and the Tribunal had made decisions that were allegedly biased and violated his privacy, which he claimed provided a reasonable explanation for his non-attendance. The court was tasked with determining whether these arguments constituted a reasonable explanation for the applicant's failure to appear at the hearing.

The legal issues before the court included whether the applicant's concerns about the conduct of the Federal Magistrates Court and the Tribunal provided a reasonable basis for his non-appearance at the hearing. The court needed to assess the validity of the applicant's claims regarding bias and privacy violations, and whether these claims justified his absence from the court on the specified date. Additionally, the court had to consider whether the applicant's explanation was sufficient to warrant setting aside the orders made due to his non-appearance.

The court found that the applicant's concerns about the conduct of the Federal Magistrates Court and the Tribunal did not constitute a reasonable explanation for his non-appearance at the hearing on 22 October 2009. The applicant had been given the opportunity to provide reasons for his non-attendance but did not offer any satisfactory explanation. The court also noted that the applicant's arguments regarding bias and privacy violations did not relate to the hearing in question, and thus did not justify his absence. Consequently, the court dismissed the applicant's application to set aside the orders.

ORDERS:
1. The applicant’s application to set aside the orders made by this court on 22 October 2009 be dismissed.

Orders

Orders of the court

1.

The applicant’s application to set aside the orders made by this court on 22 October 2009 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant also contended that the second Tribunal decision was affected by the approach taken by Scarlett FM, in that the second Tribunal’s decision was said to be “vitiated” by “the first Federal Magistrates Court’s biased prejudgment”. Even if the applicant has such a concern it does not provide a reasonable explanation for his failure to appear in this court on 22 October 2009. It was also contended that the “purported” second Tribunal decision “implies a real risk which it, if performed, exceeds its powers and function with relation to the applicant’s privacy”. This contention appears to be made on the basis that after the applicant informed the Tribunal as reconstituted that he would not attend the hearing to which he had been invited, the Tribunal (as it recorded at paragraph 44 of its decision) made inquiries of the Department about whether the applicant had been medically assessed at any time while he had been in detention, especially in relation to his mental health, and commented on the results of such inquiries. The Tribunal made these comments as part of its consideration of whether it should exercise its discretion under s.426A of Act to make a decision on the review without taking any further action to enable the applicant to appear before it. The applicant’s concern about the conduct of the Tribunal does not establish a reasonable explanation for the applicant’s failure to appear before the court on 22 October 2009. In his affidavit of 7 January 2010 the applicant then stated “[t]he second Magistrate, his (sic) Honour Barnes FM at the first (sic) hearing suggested that present proceeding would be based on the first decision which is worthless for one of authorities rather than on the lengthy present application of the applicant”. It is not clear what this is intended to convey. The first hearing conducted by me in relation to this applicant was on 22 October 2009. The applicant did not attend on that day and the matter was dismissed for non-appearance. No such “suggest[ion]” was made on that occasion (see SZNFE v Minister for Immigration & Anor [2009] FMCA 1058). Even if this is intended to refer to the applicant’s understanding of what occurred at the directions hearing conducted by a registrar, it does not explain his non-appearance on 22 October 2009. The applicant was given the opportunity to make extensive oral submissions in relation to his reasons for non-appearance. He did not elaborate on or clarify this aspect of his concerns. It does not provide a satisfactory explanation for his non-appearance on 22 October 2009. In paragraph five of his affidavit of 7 January 2010, the applicant contended that the Federal Magistrates Court had “been supporting the Tribunal’s failure of law – application in the way of amending the Migration Act (esp. S 420) which is the general provision of the Div 4 of Pt 7 of the Migration Act on the first decision at par [80]. It’s working together”. Insofar as this takes issue with the decision of Scarlett FM it does not provide any reasonable basis for the applicant’s failure to appear at the hearing of 22 October 2009.

Ratio Decidendi

Legal Principle Established

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