SZNKB and Ors v Minister for Immigration and Anor (No.2)
[2009] FMCA 615
•22 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKB & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 615 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision by Refugee Review Tribunal to affirm delegate’s decision not to grant a Protection (Class XA) visas. PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment – where applicants did not attend Court on the hearing day. |
| SZNKB & Ors v Minister for Immigration & Anor [2009] FMCA 449 SZHSY v Minister for Immigration & Anor [2007] FMCA 387 followed |
| First Applicant: | SZNKB |
| Second Applicant: | SZNKC |
| Third Applicant: | SZNKD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 775 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 June 2009 |
| Date of Last Submission: | 22 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2009 |
REPRESENTATION
| Applicants: | Appeared in person |
| Solicitor for the Respondent: | Ms Whittemore |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 775 of 2009
| SZNKB |
First Applicant
| SZNKC |
Second Applicant
| SZNKD |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court today is an application to set aside a decision of this Court made on 22nd April 2009. On that occasion the Applicants failed to attend Court when the matter was listed. Accordingly, the application was dismissed for non attendance. (See SZNKB & Ors v Minister for Immigration & Anor[1]).
[1] [2009] FMCA 449
In that decision the application was dismissed under the provisions of rule 13.03C due to the non attendance by the Applicants. An order for costs was made against the First Applicant only, as in the absence of further information it may well have been the case that the Second and Third Applicant's were under the age of 18.
As it turns out that is not the case. The Second and Third Applicants are the First Applicant's daughter and son, and they were born on 22 November 1988 and 25 February 1991, respectively, so they are both adults.
On 19th May 2009, the Applicants filed an application to set aside the orders of 22nd April 2009. The application was accompanied by an affidavit. The affidavit contains the explanation for the failure by the Applicants to appear. The affidavit says:
We got wrong date of my FMC First Court Date. The Court date is 22 April but we think it is on 22 May. We hope you can give use more chance to arrange one hearing.
The Applicants have attended Court today. The solicitor for the Minister, Ms Whittemore, opposes the application and does not seek to cross-examine the First Applicant on the contents of her affidavit. The Minister's position is that taking the contents of the affidavit at its highest, it does not disclose a ground for setting aside the earlier orders.
It is submitted that the reasons for setting aside orders of this nature should be in the nature of exceptional circumstances and it is certainly the case that decisions of the Court should not be set aside as a matter of course. The Minister relies on the decision of SZHSY v Minister for Immigration & Anor[2]. In that case, Driver FM considered a similar application. His Honour said at [3]:
Based upon the applicant's evidence, which I accept, it is clear that his failure to attend Court on 12 March 2007 was his own fault. He simply made a mistake and seeks to be relieved of the consequences of that mistake. That is, in my view, an insufficient reason for the Court to vacate its dismissal order.
[2] [2007] FMCA 387
In this case, the Applicants filed their application and affidavit in support on 3rd April 2009. The Court copy of the application shows that the First Court Date was set at 9:30am on 22nd April 2009. The Applicant say that they got the date wrong and thought it was 22nd May. There is no reason given as to why they should make such a mistake. The First Applicant made some submission about the possibility of some letter going astray but that is, clearly, not the case.
This is a situation, as in SZHSY where the applicants simply made a mistake and seek to be relieved of the consequences of that mistake. Driver FM found in SZHSY that that was an insufficient reason for the Court to vacate its order for dismissal. In my view, the decision in SZHSY is on point and whilst it is not binding upon me, the Court should normally follow its own decisions unless satisfied that the decision is plainly wrong. I am not satisfied that the decision in SZHSY is plainly wrong.
It is, in my view, correct to say that a decision of the Court dismissing an application should not be set aside as a matter of course. There would need to be a good and proper reason. Getting the date wrong by being one month is an insufficient reason. The Applicants ought to pay particular attention to when their matter is due to come before the Court. It is the Applicant who commences a proceeding, and the Applicant who brings the other party to Court to respond to it.
The Applicant needs to be aware the Court proceedings are serious matters and they need to take sufficient steps to ensure their attendance. A claim based on getting the date wrong and nothing more is, in my view, insufficient. It follows that the application to set aside the orders of 22nd April 2009 is dismissed.
The Applicants to pay the First Respondent's costs fixed in the sum of $1,000.00. I require a transcript of the Court's reasons for this decision. The application will be removed from the list awaiting finalisation.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 30 June 2009
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