SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462

FEDERAL COURT OF AUSTRALIA

SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462

SZJYK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 628 OF 2007

MOORE J

18 SEPTEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 628 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJYK

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J DATE OF ORDER: 18 SEPTEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion be dismissed. 2. The applicant pay the first respondent's costs fixed in the sum of $500. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 628 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJYK

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J

DATE: 18 SEPTEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By notice of motion filed on 23 August 2007, the applicant seeks to set aside the orders of Heerey J made on 1 August 2007. His Honour dismissed with costs the application for leave to appeal the decision of a Federal Magistrate of 26 March 2007. The Federal Magistrate had dismissed an application for an order to show cause in respect of a decision of the Refugee Review Tribunal handed down on 30 November 2006: see SZJYK v Minister for Immigration & Anor [2007] FMCA 493. Her Honour dismissed the application on the ground that it did not raise an arguable case for the relief claimed. 2 Both parties filed written submissions prior to the hearing before Heerey J on 1 August 2007. The applicant did not appear at the hearing. No reasons were published by Heerey J for dismissing rhe application though it was almost certainly because the applicant did not appear: s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth). The orders were entered on 7 August 2007. Pursuant to s 25(2B)(bc) of the Federal Court Act the Court has power to vary or set aside an order made under s 25(2B)(bb) of the Act. The Court's power to set aside such an order where the order has been entered was confirmed by the Full Court of the Federal Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61. 3 On 3 September 2007, I ordered that the motion be dealt with without an oral hearing, pursuant to Order 52, rule 2AB of the Federal Court Rules. This was done without hearing the parties on whether such an order should be made, but neither party has objected to this course nor sought the revocation of that order. The parties were invited to provide written summaries of argument, as contemplated by Order 52, rule 2AB(2) of the Federal Court Rules. Both the applicant and the Minister have done so. 4 The applicant has sworn an affidavit in support of the motion. In it the applicant deposes that he did not receive the letter inviting him to the hearing until 1 August 2007 by which time it was too late for him to attend. I note that a copy of the letter sent by the Court to the applicant at his address for service is on the file and is dated 13 June 2007. 5 The applicant has also filed a document entitled "Submission". The applicant restates that he did not receive the letter advising of the details of the hearing until 1 August 2007. He further states that: The Tribunal failed to consider my application in accordance with S91R of the Migration Act. The Tribunal did not believe my claims based on some wrong information. The Tribunal failed to carry out its statutory duty. I was not given an opportunity to comment upon the reason or part of the reasons for affirming the decision The Tribunal failed to consider my application in accordance with S424A of the Migration Act 1958. Based on the above mentioned jurisdictional errors, my case should be remitted to the Tribunal for reconsideration. 6 The Minister opposes the applicant's motion. First, the Minister does not concede that the applicant did not receive notification of the hearing until 1 August 2007. An affidavit of Brooke Griffin, solicitor for the Minister, has been filed. Annexed to the affidavit are copies of three letters, the first being the letter from the Court to the Minister's solicitors and the applicant dated 13 June 2007, and the other two being letters from the Minister's solicitors to the applicant (dated 15 June 2007 and 30 July 2007). All three letters were addressed to the applicant at his address for service and advised of the time, place and date of the hearing. The Minister further submitted that the fact that the applicant waited nearly three weeks after the hearing date to file his notice of motion casts doubt on his claims about when he received notification of the hearing details. 7 The Minister submitted that the applicant is not entitled to the orders sought for one or more of the following reasons: 1. The Court would not be prepared to draw the inference that the applicant received neither the letter from the Court nor the letter from the Minister's solicitors dated 15 June 2007; 2. The Court would either reject the applicant's assertion that he did not receive notification of the hearing date until 1 August 2007, or that if he did not receive such letters, it was because he failed to take adequate steps to ensure the documents delivered to his address for service reached him without undue delay; 3. In any event, the proposed appeal does not have sufficient prospects of success to warrant the application for leave to appeal being reinstated. 8 The Minister also submitted that, in any event, the proposed appeal had no prospects of success and for that reason that reinstatement of the application for leave to appeal was not warranted. 9 The applicant's affidavit does not describe the circumstances in which he came to receive notification on 1 August 2007, for example whether it was because he was no longer residing at his address for service or whether the relevant letter arrived through the mail that day. Even if the applicant did not in fact receive notification until 1 August 2007, I conclude, on balance, this was as a result of his own failure to take adequate steps to ensure documents delivered to his address for service without undue delay. However, having regard to the serious consequences of dismissing the applicant's notice of motion, particularly where the merits of any application for leave to appeal have not been the subject of reasons, it is appropriate to consider the prospects of success of the substantive application. In this respect, the prospects of the success of any appeal are relevant.