SZBCX v Minister for Immigration - [2005] FMCA 912

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCX v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 912

MIGRATION – Application to set aside consent orders dismissing application – where applicant blames his migration agent – where court requires department to produce files – where claims are not substantiated – where original claims before Tribunal do not appear to be within the convention.

Migration Act 1958, s.48B
Federal Magistrates Court Rules 2001

B41 of 2003 [2004] FCA 30

Applicant:

SZBCX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL (ROQUE RAYMUNDO)

File Number:

SYG1540 of 2003

Judgment of:

Raphael FM

Hearing date:

21 June 2005

Date of Last Submission:

21 June 2005

Delivered at:

Sydney

Delivered on:

21 June 2005

REPRESENTATION

For the Applicant:

In Person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3,500 pursuant to Part 21 Rule 21.02(2)(b) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1540 of 2003

SZBCX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL (ROQUE RAYMUNDO)

Second Respondent

REASONS FOR JUDGMENT

I have before me an application filed on 7 April 2005 by the applicant to set aside consent orders dismissing an application for judicial review of a decision made by the Refugee Review Tribunal on 14 October 1999. The consent orders, which were signed by a solicitor acting on behalf of the applicant on 2 April 2004, were entered as orders of this Court on 8 April 2004.
The applicant then waited a further year before making the application which is currently before me. The basis of that application in short, was that he had been misrepresented by his solicitor. It should be pointed out that this solicitor, who is also a migration agent, appeared on the applicant's behalf at the time his application was before the Refugee Review Tribunal. The applicant made certain highly prejudicial comments about the solicitor/migration agent which, had they been true or had any evidence of the possible truth of them been provided, would have caused the Court and no doubt, the Department serious concern.
I therefore adjourned the first hearing of the application and required the applicant to put on an affidavit. This he did on 24 May 2004. In that affidavit, he states at paragraph 11:
“My adviser informed the Tribunal on 20 September 1999 that I did not wish to give evidence. This is contrary to my intention as it can be evidenced by the attached file note as well as response to hearing offer sheet which is solid evidence that it was my intention to give oral evidence and to attend the hearing because my application is genuine and my future depends on the outcome of such application.”
This paragraph is in fact the most serious criticism levelled at the solicitor. The affidavit does exhibit a file note which seems to indicate that the applicant had on 7 May 1999 indicated that he wished to attend a hearing. I therefore gave a further adjournment and requested the Minister's solicitors to see whether or not they could find the file so as to indicate what the situation was with regard to the request for hearing.
The Minister complied with my request and the situation appears to be this. There was a hearing application letter sent to the applicant on 19 April 1999. On 7 May 1999 the applicant signed a response to hearing offer asking him to come to the hearing. On 11 May 1999 a hearing letter was provided to the applicant indicating that there would be a hearing on 13 July 1999. On 9 July 1999 a further letter was sent to the applicant advising him that the hearing on 13 July 1999 could not proceed and a new hearing date of 21 September 1999 was sent.
There then appears a letter from the solicitors dated 17 September 1999 indicating that the applicant did not wish to give oral evidence to the Tribunal. Annexed to that letter is a document headed "Notice requesting a decision to be made on the papers". This states:
“I [name of applicant] of [applicant's address] request the Refugee Review Tribunal to proceed to make a decision on the papers before it as I do not wish to attend a hearing. I understand the implications of my request including the Tribunal proceeding to make a decision immediately on the information it has before it including the information I have provided as well as the information it has from the Department of Immigration and Multicultural Affairs.”
The signature of the applicant then appears and the date. The Tribunal appears to have acted on that request and given its decision without further reference to the applicant.
Before me today Mr Laba Sarkis appeared as a friend of the applicant. He suggested that the signature of the applicant on the notice of 17 September 1999 was not the applicant's true signature and asked me to compare it with the signature which appears on the response to hearing offer dated 7 May 1999. I have done so. Obviously it is the responsibility of the applicant to establish a false signature but the court can look at the two signatures and compare them in order to establish whether any prima facie case that there may be a forgery is evidenced. To my mind no such implication arises from these two signatures and in the absence of further evidence I am satisfied that the signature on the notice is the signature of the applicant.
This being the case there are no grounds upon which I believe I should set aside the consent orders made over one year before this application. I note that in B41 of 2003 [2004] FCA 30 Dowsett J [25] said:
In my view, the prosecutor cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser, led to his being denied procedural fairness.
In order to allow the re-opening of this case the applicant will have to go considerably further than he has done in establishing some form of mala fides on the part of this adviser.
The applicant did not attend the hearing before the Tribunal. It is possible that had he done so the Tribunal might have had before it some additional material which would have made its decision more favourable to him. However, from a perusal of the decision it seems that the applicant's claim to have a well-founded fear of persecution for the Convention reasons of religion/political opinion/membership of a particular social group was based upon the requirement for him to undertake military service. This has been said on many occasions to be a law of general application and without evidence that the conscription laws are enforced in a discriminatory fashion does not manifest itself as a Convention reason.
As the Tribunal says at page 6 of its decision:
“He claimed that the government may view his objection to military service as reflecting a political stand; but even if this were the case, there is nothing in his evidence to suggest that this has led or would lead, to any adverse consequences to himself. It is notable that he did not even claim that the authorities have acted against him in any manner in order to coerce him to comply with his military obligations. In sum, all that he has done is to state that he is opposed to compulsory military service for religious, moral and psychological reasons. That is not enough.”
If the applicant is able to establish matters which he has failed to establish before me, namely that, in some way his application was misused by his migration agent, it may be possible for him to apply to the Minister for leave to reapply for a visa under s.48B of the Migration Act 1958 (Cth), but that is about all the relief that I can see he would be entitled to. I dismiss the application and I order that the applicant pay the respondent's costs. There have now been three hearings of this matter and I assess those costs in the sum of $3,500 pursuant to Part 21 Rule 21.02(2)(b) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: