SZSXB v Minister for Immigration & Anor (No.2)

[2013] FCCA 2259

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSXB v MINISTER FOR IMMIGRATION & ANOR (No.2) [2013] FCCA 2259

Catchwords:
MIGRATION – Application for reinstatement of judicial review application – no serious issue to be tried.

SZSXB v Minister for Immigration & Anor [2013] FCCA 1277

Applicant: SZSXB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1192 of 2013

Judgment of: Judge Driver

Hearing date: 20 December 2013

Delivered at: Sydney

Delivered on: 20 December 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr M Alderton

Sparke Helmore

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. The Application in a Case filed on 16 October 2013 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1192 of 2013

SZSXB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an Application in a Case filed on 16 October 2013 seeking the reinstatement of a judicial review application.  I dismissed that application on 4 September 2013 on account of the non-attendance of the applicant.  The judicial review application had sought review of a decision of the Refugee Review Tribunal (Tribunal).  The case had been before the Court on several occasions.  I gave first court date directions in the matter when the applicant attended in person, with the assistance of a Mandarin interpreter, on 19 June 2013. 

2. The matter was listed for a show cause hearing on 22 August 2013.  The applicant did not attend on that day, but a friend, a Mr Dickson Mak, did attend and presented a letter from the applicant explaining her non-attendance.  I gave reasons for the orders I made that day[1].  Relevantly, I made a potentially self-executing dismissal order which was not to take effect if the applicant provided medical evidence in support of her asserted illness which in her letter she had said prevented her attendance at court. 

   [1] see SZSXB v Minister for Immigration & Anor [2013] FCCA 1277

3. The applicant provided a medical certificate under cover of an affidavit which was filed on 23 August 2013.  When the matter was before me on 4 September 2013, I accepted that that affidavit and attached medical certificate was sufficient for the purpose of preventing the dismissal order made on 22 August 2013 from taking effect.  However, the orders that I had made on that day required the attendance of the applicant on 4 September if the applicant had complied with the order for the presentation of medical evidence. 

4. In her affidavit, on which she was not cross-examined, filed in support of her reinstatement application, the applicant contends that she was too unwell to attend court on 4 September and was also too unwell to file and serve any amended application identifying jurisdictional error in the decision of the Tribunal.  However, in her submissions from the bar table today, the applicant explained that in reality, she did not understand that she needed to attend court on 4 September.  That is surprising in circumstances where Mr Mak had given an undertaking to the Court on 22 August 2013 to draw the Court’s orders made that day to the applicant’s attention, and where my associate had emailed a copy of the orders to Mr Mak for that purpose. 

5. The applicant conceded that she knew something about the orders, because it was in response to the orders that she filed her affidavit and medical certificate the following day in compliance with them.  It is also surprising that the applicant waited until 16 October 2013 to file her reinstatement application.  The explanation appears to be that sometime after my orders made on 4 September 2013, the applicant discovered that her bridging visa had expired and also became aware of the costs liability in order 2 made on 4 September 2013. 

6. It appears that as a consequence of filing her Application in a Case on 16 October 2013, the applicant’s bridging visa has been reinstated.  The continuation of that bridging visa is plainly an important matter for her.  However, that benefit is not in itself a reason for the Court to reinstate her judicial review application.  Having regard to the possible confusion flowing from the orders made on 22 August 2013, which were somewhat complex, I might have been persuaded to reinstate the judicial review application if the applicant had been able to point to a serious issue to be tried.  She has, however, not been able to do so. 

7. The applicant had failed to attend an interview before the Minister’s delegate, and likewise failed to attend a hearing to which she was invited by the Tribunal.  She was aware from the Tribunal’s invitation letter, which she received, of the consequences of non-attendance.  She was apparently advised by friends that there would be no point in attending.  That was a choice that she was entitled to make.  But the consequence is that there was insufficient information before the Tribunal on which the Tribunal could make a favourable decision.  It is fair to say that the Tribunal’s decision was the inevitable consequence of the applicant’s decision not to attend the Tribunal hearing. 

8. It is not apparent to me that any arguable case of jurisdictional error could be advanced in relation to the Tribunal decision.  Accordingly, the reinstatement of her judicial review application would serve no purpose. 

9. I will order that the Application in a Case filed on 16 October 2013 be dismissed.

10. I will order that the applicant is to 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 ten (10) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 16 January 2014