SZBHO v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 544
•14 APRIL 2005
FEDERAL COURT OF AUSTRALIA
SZBHO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 544
SZBHO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1801 OF 2004
MADGWICK J
14 APRIL 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1801 OF 2004
BETWEEN:
SZBHO
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MADGWICK J
DATE OF ORDER:
14 APRIL 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2. The applicant pay the respondent’s costs assessed in the amount of $800.
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
N 1801 OF 2004
BETWEEN:
SZBHO
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MADGWICK J
DATE:
14 APRIL 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
MADGWICK J:
This is an application (in substance) to set aside an order I made on 8 February 2005, to dismiss an appeal to the Court by the applicant from a decision of the Federal Magistrates Court given on 18 November 2004. The Magistrates Court had dismissed the applicant’s application for judicial review of an adverse decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 25 July 2003.
On 8 February, his appeal was dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1975 (Cth) for his failure to attend a directions hearing related to the appeal.
On 10 March 2005, the applicant made the present application. In an affidavit in support he says:
‘… I am an unrepresented applicant. My knowledge of English is very limited. I had no idea that the date of direction is fixed on 08.02.2005. I believed that that Court will send me letter for further hearing.’
I am under severe mental stress … .’
The applicant was cross-examined in relation to this explanation and the explanation was shown to be profoundly unsatisfactory. He filed his notice of appeal to the Court on 6 December 2004. The ordinary fee therefor was waived. This cannot have happened without a degree of communication between himself and the Registry officer concerned. The notice of appeal clearly indicates that there was to be a hearing on 8 February 2005. Further, the applicant had already been through the process, in the Magistrates Court, of attending a directions hearing before the hearing by that Court of his claims for relief.
Confronted with these facts, the applicant raised for the first time a claim that he had been sick and, presumably, unable to attend on 8 February 2005, an implicit admission that he knew that the matter was before the Court on 8 February 2005. He also repeated that his English was poor. He has been in this country for over three years. He read, at one point, some figures in English with very considerable facility. I do not accept that he understands no English; indeed, he grudgingly conceded that he did understand a little English. I do not doubt that his English is limited. However, I also do not doubt that, whether through such English as he had and the patience and experience and courtesy which is the hallmark of the Registry officers of this Court in these cases, or because he had a friend more fluent in English assisting him (he affects no memory of the occasion), he well and truly understood that he was to be present on 8 February 2005.
In any case, his notice of appeal in the first ground raises a suggestion, in substance, of a failure to accord him procedural fairness in that:
‘The Tribunal did not give the appellant (me) a reasonable opportunity to respond to independent evidences in the possession of the Tribunal which suggested to the Tribunal that it is possible to be involved in political activities in Bangladesh in the circumstances of the appellant, without being a victim of violence … .’
The balance of the notice of appeal, which generally serves only to illustrate that a little knowledge of a subject, in this case: law, is a dangerous thing, raises only factual complaints which could not found jurisdictional error on the part of the Tribunal Member.
As for the claim of a denial of natural justice, when asked whether he was making any such claim, the applicant answered simply in terms of his distress that the Tribunal had not believed his claims to be a victim of political persecution should he be returned to his native land. He gave no indication that he was in reality in any way aggrieved about any denial of an opportunity to be properly heard. Nor is such a denial in any way apparent from the Tribunal’s reasons.
Neither do I discern any error in the learned Federal Magistrate’s judgment, from which it appears that the claim for a denial of natural justice was not raised in the way that the notice of appeal in this Court would suggest, though different claims of a failure to be accorded procedural fairness were raised and were dismissed.
In my opinion, unusually the Court should exercise its discretion not to set aside the order dismissing the appeal. There has not been a satisfactory explanation given. The orders should not be set aside in the absence of a satisfactory explanation and, in any event, there is no reason to think that if the dismissal of the appeal were set aside, that that would be other than a futile act because there appears to be no prospect of a seriously arguable case being put before the Court.
The application will, therefore, be dismissed with costs.
I assess costs in the sum of $800.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate:
Dated: 4 May 2005
Solicitor for the Applicant: The applicant appeared in person Solicitor for the Respondent: Sparke Helmore Date of Hearing: 14 April 2005 Date of Judgment: 14 April 2005
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