VOAQ v Minister for Immigration - [2006] FMCA 1025

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VOAQ v MINISTER FOR IMMIGRATION

[2006] FMCA 1025

MIGRATION – Protection visa – application to set aside default judgment – application for adjournment.

Applicant:

VOAQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File number:

MLG 485 of 2003

Judgment of:

Phipps FM

Hearing date:

4 May 2006

Date of last submission:

4 May 2006

Delivered at:

Melbourne

Delivered on:

4 May 2006

REPRESENTATION

The Applicant

In person

Counsel for the Respondent:

Ms Veschetti

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed 3 November 2005 is dismissed.
The applicant pay the respondent's costs fixed at $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 485 of 2003

VOAQ

Applicant

And

MINISTER FOR IMMIGRATION

Respondent

REASONS FOR JUDGMENT

The applicant applies for another adjournment of his application. His application which this court is dealing with was filed on 3 November 2005. It is an application to set aside an order made in default of appearance by the applicant. The order was made by the then Chief Federal Magistrate on 27 May 2004. That dismissed for default of appearance an application to review a decision of the Refugee Review Tribunal.
The history of applications is that the applicants, husband, wife and children, arrived in Australia on 23 June 2002. They applied for protection visas on 4 July 2002. Only the husband makes protection claims. Their application was refused by a delegate of the minister on 21 August 2002. They applied for review to the Tribunal on 9 September 2002. The Tribunal affirmed the decision not to grant protection visas on 5 March 2003.
An application to review was filed in the Federal Court on 22 April 2003. It was transferred to the Federal Magistrates Court on 7 May 2003. At the same time, orders were given for the filing of an amended application. Registrar Wood on 20 June 2003 listed the application for hearing on 13 August 2003, again with directions for an amended application and with directions for each party to file contentions.
On 13 August 2003, Registrar Efthim fixed it for hearing on 13 January 2004. It came before the then Chief Federal Magistrate Bryant on 17 February 2004 and was adjourned to 25 March 2004 with an order that the applicant pay costs. There was then an amended application filed on 24 March 2004, and apparently some issues were raised about the accuracy of the translation at the Tribunal hearing. On 25 March 2004, it was again adjourned until 27 May 2004. Then on 27 May it was dismissed for non-appearance.
The history of the application I am dealing with is that after filing on 3 November 2005, it came before me on 20 December 2005. The applicant who is assisted by a McKenzie friend then said that the case he wanted to put forward, or which was sought to be put forward on his behalf, was based on inaccuracy of translation at the Tribunal hearing. The applicant had been unable to obtain a translation and sought some time. The application was then adjourned to 20 February 2006.
There was a direction that any contentions of fact and law and any affidavit in relation to the standard of translation be filed by 4.00pm on 7 February 2006. The application was adjourned to 23 March 2006. It then came before me on 23 March 2006 and was again adjourned because the translation had not been obtained. At one of the hearings it was explained to me that staff at Monash University had agreed to do the translation pro bono and that it would take about six weeks.
The application for a further adjournment is based on a claim that the staff member of Monash University has said that the translation cannot be done until the mid-year break in June. The applicant has filed an affidavit to that effect. The respondent opposes any further adjournment.
I consider it is relevant that nothing has been put forward by way of particulars or contentions which state why it is that errors in translation might have affected the decision. A reading of the Tribunal's decision does not suggest that there were any problems. The Tribunal sets out in detail what it is that the applicant claims so that the position is that more than three years after the Tribunal's decision, the particulars of what might constitute a jurisdictional error have not been identified.
The applicant's friend has claimed that for a period of 16 months the Department of Immigration wrongly told the applicant he could not work and so he could not pay to get the tapes translated. The applicant has the tapes and they are said to be four hours long.
Up to the final hearing before the Chief Federal Magistrate on 27 May 2004, it appears that the applicant was represented. He says that he was let down at that final hearing by his legal representative who did not arrive at the hearing although he had been paid by the applicant.
The considerations in determining an adjournment are fairness to the applicant, fairness to the respondent and public interest in having finality in administrative decisions, such as decisions about visas. The court application was filed in the Federal Court on 22 April 2003. By the middle of 2004 when the dismissal order was made, the issue about translation had been raised. Even taking into account that there may have been a period of 16 months where the applicant was prevented from working by wrong advice by the department, there has been sufficient time for the applicant to obtain translation and to attempt to establish whether he has an argument that the Tribunal was wrong.
The claim that the applicant was prevented from working by wrong advice from the Tribunal is an assertion and not the subject matter of any evidence. For the purpose only of the adjournment application I will accept that it is correct. But even accepting that it is correct the applicant has had sufficient time, particularly when balanced against the public interest of finality. The proper exercise of discretion in all the circumstances is to refuse the application for adjournment.
I now need to deal with the application to set aside the default order made by the Chief Federal Magistrate on 27 May 2004. The principles are clear. The court looks at the explanation for non-appearance and whether there is an arguable case on the merits. The applicant says he was let down by his lawyer. He did not know of the hearing date on

27 May 2004 and he expected his lawyer to appear. I accept that he has given a reasonable explanation for non‑appearance.
The Tribunal's decision is based on matters of fact. The applicant was born in northern Cyprus, so he is ethnically Turkish and his religion is Islam. He is a Cypriot Turk citizen. He lived in north Cyprus before coming to Australia on a Turkish passport issued in July 2000. His claim to fear persecution if he returns to north Cyprus is based on claims that he belonged to pro-peace organisations and that that then brought him to the attention of the authorities in northern Cyprus. He claimed to have been picked up with three or four friends and bashed and he claimed to be a member of an organisation YVH which was a pro‑peace movement.
The Tribunal found that the applicant is a citizen of Cyprus. The tribunal did not accept the applicant's claim to have been involved in the peace movement in Cyprus and it gave reasons for doing so. It did not accept that he was harmed as a result of attending demonstrations or other activities against the government. It then said that even if he did participate it did not accept he was detained. Again it gave its reasons.
The Tribunal referred to country information, but despite a very few well known cases and occasional altercations with police at large demonstrations, people in general are not persecuted for their political opinions in Cyprus. It was not satisfied that a claim of a denial of a scholarship to the applicant's son on political grounds was correct. It did not consider it was motivated by a convention reason. The Tribunal said that from the applicant's description it appeared to have been a bureaucratic mistake. The Tribunal was not satisfied that the applicant's difficulties with dealing with government departments were because of his political views. So the Tribunal was not satisfied that the applicant faced a real chance of persecution.
The only matter that the applicant puts forward is a claim that the translation at the Tribunal hearing was lacking. No particulars are given of how that might have affected the decision and there is no translation of the hearing before the court. The reason for that I have dealt with in my reasons for refusing the adjournment. It is an applicant's responsibility to supply a translation if it is to be relied upon. In addition, quite apart from no particulars being given, reading the Tribunal's reasons does not give any help in seeing where poor translation might have affected the decision.
No basis for setting aside the Tribunal’s decision is shown which means that on the second consideration, whether there is an arguable case, the applicant fails. The application to set aside the default judgment is dismissed.
The normal rule in these sorts of court applications is that if a party is unsuccessful there is an order made that they pay the other party's costs. The respondent's application is based on that normal principle.
The applicant has been unsuccessful so the normal rule that an unsuccessful party should pay costs applies. An amount of $4000 is sought. I will use as a guide the court's costs schedule. Schedule 1 of the Federal Magistrates Court Rules 1991 Part II, which deals with migration proceedings, does not apply directly to this application but it provides a guide. Under that schedule if the proceeding is concluded after the first court date for the proceeding and at or before the show cause hearing, the amount fixed is $2500. $4000 is sought. I will allow an amount of $3000.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 18 July 2006