SZBCH v Minister for Immigration - [2005] FMCA 53

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCH v MINISTER FOR IMMIGRATION

[2005] FMCA 53

MIGRATION – Application for judicial review of RRT decision – where hearing was due to take place at John Madison Tower – where the day before the hearing the location changed to Queens Square – where the Court adopted measures to ensure the applicant would be aware of this change - where applicant in any event did not attend Court – whether matter should be dismissed for non appearance.

Federal Magistrates Court Rules 2001

Minister for Immigration v NAOS of 2002 [2003] FCAFC 142
Abebe v The Commonwealth (1999) 197 CLR 510

Applicant:

SZBCH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1512 of 2003

Delivered on:

13 January 2005

Delivered at:

Sydney

Hearing date:

13 January 2005

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

No appearance

Counsel for the Respondent:

Mr C Mantziaris

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules.
The applicant to pay the respondent's costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1512 of 2003

SZBCH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

These proceedings were originally set down for hearing before me. In about October 2004, they were placed into the docket of Federal Magistrate Nicholls and they were due to be heard today in his court which is situated in the John Maddison Tower at Goulburn Street, Sydney. Yesterday, I was advised by Federal Magistrate Nicholls that his wife had made the decision in the case and the learned Federal Magistrate did not believe it was appropriate that he should hear the application for review. I therefore agreed to hear the application for review in this court.
My associate made a number of telephone calls to the applicant's mobile phone number which had been provided with the Migration Matters Question and Information Sheet completed by the applicant on 10 October 2003. She also telephoned the fixed line number that was provided. The applicant has not advised the court of any change to those numbers but neither of them elicited a response.
The listing of the matter in the court today indicated that the matter would be heard in Goulburn Street and therefore arrangements were made with the associate to Federal Magistrate Nicholls for her to keep a look out for the applicant so that she could tell him to come to this hearing in Queens Square. Naturally, the applicant would have been afforded ample time to make his way from John Madison Tower to Queens Square, a distance of some 5 blocks. My associate has been in contact with Federal Magistrate Nicholls' associate and she informs me that the associate remained either outside the court room in John Maddison Tower or downstairs inside and outside that building looking for the applicant. It is to be noted that John Maddison Tower is a court building shared by the Federal Magistrates Court and the District Court of New South Wales and the Dust Diseases Tribunal of New South Wales. At the present time, i.e. in mid January, the building is little used other than for Federal Magistrates Court matters and therefore the applicant is unlikely to have been missed by Federal Magistrate Nicholls' associate.
I called the matter on for hearing in Queens Square at approximately 10.55am today. I called for the applicant outside the court and there was no appearance.
In the circumstances, I propose to exercise my discretion to dismiss this application pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules on the basis that the applicant is in default of appearing in his own application.
Although the applicant has the right to ask this court to set aside the order which I have just made, I would note that I have perused the decision of the Tribunal made on 18 June 2003 and handed down 11 July 2003. I note the eight grounds of the application of the applicant. The first ground indicates that “The Tribunal did not take into account the conviction of a court case against me in Bangladesh of a convention based reason.” This is not correct. The existence of the alleged false charges against the applicant was clearly noted at [CB 111] and dealt with in the first substantive paragraph on that page of the Tribunal's decision.
The second claim is that “The Tribunal made his decision in bad faith(sic). ” As Mr Mantziaris says in his helpful written submissions, an allegation of bad faith is a serious matter which must be made out according to the principles stated in Minister for Immigration v NAOS of 2002 [2003] FCAFC 142 at [18] ‑ [21]. I agree with Mr Mantziaris that on the basis of the documents before me, the application fails the NAOS test because it is not clearly alleged nor is there any attempt to prove it. No personal fault or absence of honesty on the part of the decision-maker has been made out.
The third ground is that “The Tribunal deprived me of the natural justice (sic).” It is not clear how he substantiates this claim. My reading of the Tribunal decision is that the Tribunal listened carefully to the claims made by the applicant and tested them with him against independent country information and the Tribunal's own views of the consistency of those claims. I am unable at the moment to see how a natural justice claim can be made out.
The next matter was that “The Tribunal denied the evidentiary proof of my claim.” I assume that this means that the Tribunal made its decision without any evidence. That is patently not the case if one reads the decision as a whole and the careful way in which it was expressed.
The fifth matter raised by the applicant is that “The Tribunal's decision did not reflect the material facts of my claim.” The Tribunal decision has set out in some detail the claims made by the applicant in his various applications for asylum, then dealt with them in discussion and in the grounds and reasons. It is difficult to see how the applicant could have succeeded in this area of his application.
The sixth ground was that “The Tribunal has given a decision which was preset in the back of its mind.” This a bias argument with which I have already dealt.
The seventh matter is that “The Tribunal mixed up many facts with this decision which affected the decision.” Apart from acknowledging a mistake of fact is not a jurisdictional error: Abebe v The Commonwealth (1999) 197 CLR 510, it is also difficult to understand what this claim really means without any particulars. In any event, my reading of the court book does not reveal such confusion.
Finally, the applicant says that “The Tribunal concentrated in particular fact, while ignored many other facts in this condition (sic).” Once again, it is difficult to understand what this really means. These grounds of application are distressingly familiar. One would only hope that the author takes the time to revise them so that they read in a way that is more comprehensible to those of us who have to deal with them on a daily basis.
The matters raised above are merely indicative of a view that I have come to without the benefit of the applicant's submissions. However, it might assist him in considering whether or not he should take advantage of his opportunity to request a rehearing when (and if) he receives a copy of this judgment.
I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 7 February 2005