SZUTA v Minister For Immigration and Anor (No.2)

[2015] FCCA 393

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTA v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 393

Catchwords:
MIGRATION – Refugee Review Tribunal – application to set aside orders – insufficient reasons for failure to attend – application dismissed.

Legislation:  

Federal Circuit CourtRules 2001

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
SZVZJ v The Minister for Immigration and Border Protection [2015] FCCA 293

Applicant: SZUTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 111 of 2015

Judgment of: Judge Street

Hearing date: 18 February 2015

Date of Last Submission: 18 February 2015

Delivered at: Sydney

Delivered on: 18 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms Rayment

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application in a case filed 13/02/15 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 111 of 2015

SZUTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under rule 16.05 to set aside the orders of the Court made on 12 February 2015. On 12 February 2015 there was no appearance by the applicant on the return date at which the matter was listed for either hearing or further directions. The matter was dealt with on the basis that the ground identified in the application for a Constitutional writ identified no jurisdictional error and that there was no reasonable prospect of success. Accordingly, the application was dismissed.

2. In support of the application to set aside the earlier Court order, the applicant relied upon an affidavit sworn 13 February 2015, as well as his earlier affidavit sworn 16 January 2015 and the Court book which was marked exhibit A. In considering whether an order should be made under rule 16.05 of the Federal Circuit CourtRules 2001, the principal concern is the administration of justice.  In that regard, it is generally required that there be a satisfactory explanation of the default in relation to an order is made by default and that there be some utility in the making of the order.

3. Although the affidavit in support is bare in the explanation and what was said from the bar table as to attending a doctor’s appointment rather than attending Court is not, on its face, satisfactory, the Court would be willing to set aside the order if it was apparent that there was some utility in doing so.  In that regard, the Court raised with the applicant the absence of any jurisdictional error on the face of the application and that the Court had considered, on the last occasion, the decision of the tribunal and that it appeared that the application had no reasonable prospect of success and it was, therefore, summarily dismissed.

4. The applicant was asked what further submissions he wished to put as to the utility in making an order and suggested that the decision of the tribunal was made on different allegations. There were no substance in this contention.  The Court took the applicant to the content of the findings that were made by the Tribunal as to the credit of the applicant. Those were findings of fact which, on the material before the Tribunal, I am satisfied were reasonably open and, in respect of which, this Court is not sitting as a Court of general review. This Court can only interfere with the decision of the Tribunal on the grounds of jurisdictional error in the conduct of the review or by reason of jurisdictional error in the reasons for the decision.

5. The applicant did not put any other submission when invited to do so twice, as to the grounds why there would be utility in the making of any order to set aside the orders made on 12 February 2015. The applicant did not identify some arguable question of jurisdictional error.  I take into account the principles identified in SZVZJ v The Minister for Immigration and Border Protection [2015] FCCA 293 at paragraph [6]. I am clearly satisfied that, in the circumstances of the present case, there would be no likelihood that it would be unjust to allow the earlier orders to stand.

6. I am clearly satisfied that there is no jurisdictional error on the ground identified in the application and that the application is doomed to failure.  I have taken into account the principles and caution in Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28. I am clearly satisfied that the application has no reasonable prospect of success. In these circumstances, there is no useful purpose to be served by setting aside the orders on 12 February 2015 and it is not unjust to allow the orders made to stand. The application in a case filed on 13 February 2015 is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 February 2015