S1280 of 2003 v Minister for Immigration
[2005] FMCA 1110
•21 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1280 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1110 |
| MIGRATION – RRT decision – failure to attend court hearing – adjournment request unsupported by medical evidence – application dismissed. |
Federal Magistrates Court Rules 2001, r.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), s.483A
Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289
Applicant S1280 of 2003 v Minister for Immigration [2004] FMCA 742
| Applicant: | APPLICANT S1280 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1543 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 21 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance by or on behalf of the applicant |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed pursuant to Rule 13.03A(c) for absence from the hearing.
Applicant to pay the respondent’s costs in the sum of $5500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1543 of 2004
| APPLICANT S1280 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application under s.483A of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 August 2000 and handed down on 12 September 2000.
The applicant arrived in Australia in June 1999, and applied for a protection visa soon thereafter assisted by an agent, Mr Haque. The application was refused by a delegate on 15 July 1999, and the applicant appealed to the Tribunal.
The Tribunal’s statement of reasons for affirming the delegate’s reasons indicates that its decision turned essentially upon its assessment of the applicant’s evidence, and upon its refusal to accept that he had political prominence to the extent that he had claimed. The Tribunal also said that it was not satisfied that a criminal charge, which the applicant claimed was outstanding against him, was a false case in the sense of being improperly brought for political reasons. The Tribunal said that it was not satisfied that the applicant was at risk of suffering persecution in Bangladesh because of his political opinions and political associations.
On 8 October 2000, the applicant commenced judicial review proceedings in the Federal Court in relation to the Tribunal’s decision. These were listed for hearing before Beaumont J on 14 December 2000. The applicant did not attend the hearing and his Honour dismissed the application with costs. The application for review contained only broad and unparticularised grounds of review.
On 1 March 2001, an amended statement of claim joined the applicant as a represented party in the High Court proceedings brought by Ms Nancy Lie. He retained that status until 2002, when Gaudron J gave leave to him and many others to file an individual application for an order nisi. The applicant filed in the High Court an application for an order nisi on 29 May 2003, supported by an affidavit which alleged a failure to accord procedural fairness, but which provided no particulars to give it substance. His application was transferred to the Federal Court.
On 20 February 2004, Emmett J refused the application, and published reasons for doing so in this and numerous similar cases (see Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289). In the course of his Honour’s reasons, he indicated that there would be no prejudice to the applicant by reason of the refusal of the order nisi, on the basis that no estoppel would arise and that the Minister had assured the Court that she would not make a submission in any future proceeding that there was not a satisfactory explanation for the delay between the period of joining the High Court proceeding and the refusal of the order nisi.
The applicant then, on 25 May 2004, commenced the present proceedings acting on his own behalf. His application contains four grounds of review. These allege that the Tribunal “without any investigation … made the decision”, that the Tribunal “did not opportunity to comments in the material which the Tribunal relief the decision”, and other criticisms of the Tribunal without any particulars showing a substantial ground for review.
The respondent, without seeking directions to obtain particulars of the applicant’s grounds of review, brought a motion for summary dismissal of the proceeding as an abuse of process. I refused this motion and, at the request of the respondent, revised and published my ex tempore reasons (see Applicant S1280 of 2003 v Minister for Immigration [2004] FMCA 742).
The applicant was absent on that occasion, but had sent the Court a facsimile on the morning of the appointed day saying: “I am sick today so I cannot come today for hearing. If possible could you change my hearing date please”. After dismissing the Minister’s motion, I appointed a directions hearing on 26 October 2004 and directed that the applicant be given notice of that hearing. I also directed that he be told that his application might be dismissed if he failed to attend or to present medical evidence of an inability to attend. I am satisfied that the applicant was given notice of that direction by a letter sent by the respondent’s solicitors on 12 October 2004.
The applicant did attend the directions hearing, and I gave directions for the preparation of the matter leading to the final hearing listed for today. The applicant signed the short minutes of order, and I am satisfied that he was fully aware of today’s hearing, and has been aware of it since October last year.
The directions included directions for him to file affidavits containing evidence relied upon, an amended application, and written submissions. However, the applicant has filed no affidavit evidence, in particular to make out any procedural fairness complaint, and has not filed an amended application containing grounds which might reveal an arguable case. He has filed a document headed “Statement”. This is in the nature of a submission which essentially complains about the factual assessments arrived at by the Tribunal. It also contains allegations of bias and lack of good faith, without pointing to any real basis for those allegations.
The applicant was served with a written submission prepared by counsel for the Minister by letter dated 14 July 2005 reminding him of today’s hearing. On 19 July 2005, that is two days ago, the Court received a facsimile from the applicant from a Haymarket Post Office which states:
I have a hearing on Thursday, 21 July 2005 before Federal Magistrate Smith at the Law Courts Building at John Maddison Tower at 88 Goulburn Street, Sydney. Now I am very sick so I cannot attend on hearing day. So my request could you make a further directions.
The applicant lives, according to his application, at Hillsdale, a suburb near the airport. My associate attempted to contact the applicant on the only phone number provided by the applicant to the Court, but was redirected to a message bank where she left a message for him to contact her. No contact was made to my associate in response. If he had made contact, his attention would again have been drawn to the need for medical evidence to support his adjournment application.
No medical evidence has been provided by the applicant in support of his adjournment request. In the circumstances of the case, including its lack of any apparent arguable merit and the whole history of the matter which I have recounted above, I consider that I should refuse the adjournment request by the applicant and dismiss the application in his absence. I consider that he has had ample opportunity to prepare and present documents raising an arguable case. He has not done so.
The applicant was, in relation to a previous similar request, made aware of the need for medical evidence to support an adjournment application. He has not presented such evidence today, and I am not satisfied that he is genuinely unable to attend today’s hearing. On the material before me, the more likely explanation is that he appreciates a lack of merit in his case. That, of course, is only a provisional judgment on my part, based on the document that he has filed in the Court and without the benefit of submissions by or on behalf of the applicant.
Under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001, the orders I propose to make today may be set aside by this Court on application by the applicant. He will however have to present medical or other evidence showing a satisfactory explanation for his absence today, and he will need to point to merit in his application justifying its restoration to the Court’s list.
For the above reasons I dismiss the application pursuant to r.13.03A(c), for absence from the hearing. I order the applicant to pay the respondent’s costs in the sum of $5500.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 11 August 2005
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