SZSQI v Minister for Immigration & Anor (No.2)
[2013] FCCA 1065
•12 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSQI v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2013] FCCA 1065 |
| Catchwords: MIGRATION – Application for reinstatement of a show cause application dismissed on account of the non attendance of the applicant – reinstatement refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| SZSQH v Minister for Immigration & Anor [2013] FCCA 817 SZSQI v Minister for Immigration & Anor [2013] FCCA 850 |
| Applicant: | SZSQI |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 435 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Ms B Rayment Sparke Helmore |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Application in a Case filed on 25 July 2013 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 435 of 2013
| SZSQI |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an Application in a Case filed on 25 July 2013 seeking reinstatement of a show cause application filed on 6 March 2013. The show cause application sought review of a decision of the Refugee Review Tribunal (Tribunal). I had dismissed the show cause application on 16 July 2013 on account of the applicant’s non-appearance[1].
[1] SZSQI v Minister for Immigration & Anor [2013] FCCA 850
The background is that the applicant and her partner made separate review applications to the Tribunal that were dealt with by the same Tribunal member on consecutive days.
Two judicial review applications were received in this Court and both allocated to my docket. I had directed that they be heard on consecutive days before me. The applicant’s partner’s case came before me on 15 July 2013. The Minister was represented by a solicitor, and the applicant in that case represented himself. I heard the matter on 15 July 2013 on a show cause basis. That applicant’s partner – the present applicant – attended court on that day.
Having heard the parties, I delivered an oral judgment[2], which was interpreted for the parties by the interpreter who attended court on that day. I dismissed applicant SZSQH’s application on the basis that he had failed to disclose any arguable case of jurisdictional error by the Tribunal. I note that applicant SZSQH has applied to the Federal Court for leave to appeal against that decision.
[2] SZSQH v Minister for Immigration & Anor [2013] FCCA 817
When the present application was called at 2.24pm and 2.32pm on 16 July 2013, there was no appearance by or on behalf of the applicant. Given that she had been in attendance with her partner in court the previous day, her absence was significant. The Minister’s solicitor tendered a letter[3] dated 23 April 2013 to the applicant at her address for service in Griffith. That letter warned her that in the event that she did not attend court for her hearing, the Minister would seek to have the matter dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). In the event, that is what occurred. The applicant now seeks the vacation of that order and the consequential costs order, and the reinstatement of her judicial review application.
[3] exhibit R1
The applicant gave oral evidence today about the circumstances of her non-attendance. She said that she and her partner drove from Griffith to Sydney for the two court hearings. They came into the city by train from Guildford, having left the car there. Following the dismissal of her partner’s application on 15 July 2013, they slept in the car overnight at Guildford, and travelled into the city for the present applicant’s hearing the following day. However, after they arrived at Central Station and were walking through the park towards the court, the applicant was overcome by illness. They returned to Central Station and returned to Guildford, whereupon they drove back to Griffith.
The applicant consulted a doctor, apparently on 1 August 2013, and was given medication for dizziness and related symptoms. She had a blood test. The applicant, under cross-examination, conceded that she had received the letter which was exhibit R1, but explained that her illness prevented her from attending court. She also conceded that she and her husband had access to a mobile telephone on 16 July 2013, but did not attempt to contact the Court or the Minister’s solicitor because of anticipated language difficulties.
I accept that attending court can be a very stressful experience. In the present applicant’s case, that stress would have been significantly heightened by having attending court to see her husband’s application dismissed summarily the day before. It is entirely possible that the applicant was overcome by anxiety, and failed to attend court for that reason.
However, her failure to attempt to contact the Court or the Minister’s solicitor to explain the circumstances, and her apparent delay of several weeks in seeking medical attention, suggest that it is equally possible that the applicant simply decided that there would be no point in attending court because the outcome was likely to be the same as the outcome of her partner’s application the preceding day.
Indeed, if I had been persuaded that the applicant had advanced a sufficient explanation for her failure to attend court, and I have not been so persuaded, I would probably not have departed from my reasoning in SZSQH v Minister for Immigration & Anor, given that the protection visa applications of the two applicants raised the same issues, were considered by the same Tribunal member in the same way, and the issues before the Court were effectively identical.
In all the circumstances, I have decided that I should not vacate the orders that I made on 16 July 2013. I will therefore dismiss the Application in a Case filed on 25 July 2013.
In consequence of the dismissal of the applicant’s Application in a Case, the Minister seeks an order for costs fixed in the sum of $500. The applicant did not wish to be heard on that issue. I will order that she pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $500.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 August 2013
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