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

[2015] FCCA 293

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZJ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 293

Catchwords:
MIGRATION – Application to set aside orders – application dismissed.

Legislation:  
Migration Act 1958

Applicant: SZVZJ

First Respondents: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondents: REFUGEE REVIEW TRIBUNAL

File Number: SYG 86 of 2015

Judgment of: Judge Street

Hearing date: 11 February 2015

Date of Last Submission: 11 February 2015

Delivered at: Sydney

Delivered on: 11 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms Johnson

Solicitors for the Respondent: Mills Oakley Lawyer

ORDERS

1. Application in a case 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 86 of 2015

SZVZJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under r.16.05 of the Federal Circuit Court Rules to set aside orders made by this Court on 5 February 2015. In the reasons for judgment delivered on 5 February 2015 I explained that the proceedings which were brought under the Migration Act 1958 and required leave under s.477. These proceedings were disposed of on the basis that the ground identified in the application had no prospect of success and that, in default of appearance, I proceeded to deal with the matter summarily given that the application was patently deficient with no reasonable prospects of success.

2. In support of the application to have the orders set aside the applicant has relied upon an affidavit explaining the circumstances in which he failed to appear as well as seeking to rely upon his earlier affidavit filed in the Court in support of the application and the material that was before the Tribunal which was marked exhibit A. The power under r.16.05 provides a broad discretionary power to be exercised in accordance with the interests of the administration of justice in the particular case.

3. Rule 16.05 is informed by the object identified in r.1.03(1) which identifies that the object of the rules is to assist the just, efficient and economical resolution of the proceedings. In considering whether the power under r.16.05 should be exercised, it is material that there must be some useful purpose to be served in setting aside the earlier orders.

4. Where orders have been made in default of appearance of a party it is generally necessary to consider whether an adequate explanation has been provided for the relevant default and whether the party in default has a material argument which, if heard and decided on the merits, might reasonably affect the determination of the rights of the parties in a way different from that in the impugned order. It is generally that second consideration that informs whether, in the circumstances of the particular case, there is a real likelihood that it would be unjust to allow the order to stand. 

5. In the present case I am satisfied that there is an adequate explanation for the default in the affidavit evidence of the applicant.  However, I can see no useful purpose being served by setting aside the order when the application does not identify any arguable ground of jurisdictional error and has no reasonable prospect of success.

6. In the circumstances of the present case there would be no likelihood that it would be unjust to allow the earlier orders to stand.  The applicant was asked what he wished to put as to the utility of setting aside the order and said all the evidence that he gave before the Tribunal was true and that he was not believed.  The Court asked if there was anything further that the applicant wished to put as to the existence of any jurisdictional error by the Tribunal and the applicant said, “No.”

7. The Tribunal in its reasons dated on 14 November 2014 did find that it does not consider the applicant to be a credible or reliable witness and did make adverse findings in relation to the applicant in respect of the criteria for the grant of a Protection (class XA) visa under s. 65 of the Migration Act 1958.  The Tribunal explained in detail its reasons for rejecting the credibility of the applicant and they were clearly findings that it was open for the Tribunal to make. There is no error by the Tribunal a kind that permits review by this Court based on the complaint that the evidence is true and that the applicant wasn’t believed.  These were matters for the Tribunal to determine and the findings do no lack an evident and intelligible justification.

8. This Court is not conducting a review on the merits of the Tribunal’s decision. When an application for a constitutional writ is brought the court’s jurisdiction is confined to jurisdictional errors in the process and/or reasons of the Tribunal.  The applicant has no arguable case of jurisdictional error in the process or reasons of the Tribunal.  Accordingly, there is no useful purpose to be served by setting aside the orders made by this court on 5 February 2015.  The application filed on 9 February 2015 is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  KM

Date:  12 February 2015