SZAGE v Minister for Immigration
[2003] FMCA 585
•5 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAGE v MINISTER FOR IMMIGRATION | [2003] FMCA 585 |
| MIGRATION – Where failure of applicant to attend hearing resulted in the proceedings being dismissed – where application made to have that order set aside and another hearing date set – where applicant was given a letter at the end of the Tribunal hearing informing him that his appeal was unsuccessful – where applicant asserted that the Tribunal proceedings were pre-judged and on this basis there is good reason for his case to be heard. |
MIMIA v Jia [2001] HCA 17
| Applicant: | SZAGE |
| Respondent: | MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS |
| File No: | SZ 332 of 2003 |
| Delivered on: | 5 December 2003 |
| Delivered at: | Sydney |
| Hearing date: | 5 December 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
I dismiss the application.
I order that the applicant pay the respondent's costs of this application, which are to be in addition to the costs already awarded, in the sum of $1250, pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 332 of 2003
| SZAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This case came before me for hearing on 20 October 2003. The applicant did not appear and I made orders dismissing the proceedings pursuant to Order 32 Rule 2(1)(c) of the Federal Court Rules. These rules provide that where a case is dismissed in this manner an applicant may make a further application to the court to set aside the order so that his case can be heard: Order 32 Rule 2(2). The applicant in these proceedings has done exactly that. He has filed an affidavit in which he candidly admits to being in error concerning the date of the hearing which he thought was 22 October and not 20 October. He has apologised for that error.
What the applicant has not done is to persuade me in any way that there would be some utility in rehearing, or hearing for the first time, his case. He has not indicated to me why he did not comply with the orders of the registrar requiring him to file an amended application and an affidavit in support. And when I asked him what his complaint was concerning the decision of the Tribunal he made it clear that his complaint related to the fact that he believed that the proceedings had been pre-judged.
Pre-judgment is a form of bias and is a very serious matter. As the High Court said in MIMIA v Jia [2001] HCA 17:
“Bias in the form of pre-judgment occurs where the decision maker is so committed to a conclusion already formed as to be incapable of alternation whatever evidence or arguments may be presented.”
The court later went on to say that:
“ A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be clearly made and distinctly proved.” (Gleeson CJ and Gummow J at [69] and Kirby J at [127]).
The applicant's evidence for the allegation that he has made is that the Tribunal told him at the end of the hearing that it had decided the case against him. It presented him with a letter which said just that. The Tribunal provided fully argued reasons for decision some four days later. The decision which the Tribunal came to was that it was not satisfied that the applicant was a person to whom Australia had protection obligations because it was not satisfied that he had a well founded fear of persecution for a convention reason. At [CB93] the Tribunal says:
“Apart from the matters I have dealt with above, there are several other indicators that the applicant did not fear persecution: he obtained a passport in his own name without difficulty in June 1996, which indicates that he did not fear detection; he did not leave Bangladesh until 52 months after the issue of the passport, which shows that he was in no hurry to leave; when he left Bangladesh he left legally and by using a passport in his own name, which again shows that he did not fear detection; and he did not lodge a protection application until six weeks after he left his country, which shows an absence of anxiety for his fate.
I believe that if the applicant genuinely feared persecution when he left Bangladesh he would have done everything possible to obtain appropriate protection under the convention at the earliest possible opportunity after departure, not only for his own peace of mind but also for the peace of mind of his family back in Bangladesh. There are several significant differences between the claims made by or on behalf of the applicant before the hearing and the claims made by the applicant at the hearing. When viewed against the country information, the cumulative impact of these differences and of certain other aspects of his claims and personal circumstances and behaviour mentioned above, is such that I conclude that the applicant did not and does not have a genuine fear of persecution and that he has no well founded fear of persecution within the meaning of the convention. Accordingly, I am satisfied he is not a refugee.”
I am satisfied from a perusal of the court book that the Tribunal based its decision upon evidence that was available to it. It came to conclusions about credibility which are, as is well known, the function of the Tribunal par excellence. The applicant has not articulated any grounds upon which he considers jurisdictional error has been committed other than the one which I have dealt with. I am unable to say that the applicant has established any grounds upon which he could impugn the decision of the Tribunal for bias merely because the Tribunal came to its conclusions speedily.
In those circumstances I accept the submissions of Ms Roberts on behalf of the Minister that there would be no utility in permitting the applicant a further opportunity to rehearse his complaints. The Federal Magistrate's Court in Sydney currently has a waiting list in migration matters which extends out until May 2005.
It is necessary to take into account the effects of these applications upon the administration of justice. Applicants should not be able to simply fail to turn up to their hearings and then receive a further hearing some years down the track, or alternatively jump in front of other persons who are waiting their turn. Obviously, such an opportunity must be given to a person where the court feels that there is a genuine case to be argued but in this case I do not.
I dismiss the application. I order that the applicant pay the respondent's costs of this application which are to be in addition to the costs already awarded in the sum of $1250, pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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