SZBVR v Minister for Immigration - [2005] FMCA 20

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBVR v MINISTER FOR IMMIGRATION

[2005] FMCA 20

MIGRATION – Review of Refugee Review Tribunal decision – application for reinstatement of judicial review application that had been dismissed for non appearance of the application, failure to comply with a court order and because no reasonable cause of action was disclosed – no substance to the judicial review application – reinstatement application refused.

Applicant:

SZBVR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2391 of 2003

Judgment of:

Driver FM

Hearing date:

17 January 2005

Delivered at:

Sydney

Delivered on:

17 January 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Mr B Cramer
Blake Dawson Waldron

INTERLOCUTORY ORDERS

The application for reinstatement filed on 25 October 2004 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2391 of 2003

SZBVR

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application filed on 25 October 2004 seeking the reinstatement of an earlier application filed on 7 November 2003. That earlier application was one to review a decision of the Refugee Review Tribunal (“the RRT”). I dismissed that application on 11 October 2004. There were three bases for the dismissal. The first was that the applicant had failed to attend court on 11 October 2004. The second was that the applicant had failed to comply with an order made on 24 March 2004 calling for an amended application by 12 May 2004. The third was that the judicial review application filed on

7 November 2003 failed to disclose a reasonable cause of action.
In his present application for reinstatement of his judicial review application the applicant explains why he did not attend court on 11 October 2004. The applicant says, and I accept, that he filed a change of address for service form twice, on 15 September 2004 and on 5 October 2004. On the first occasion the applicant notified the Court that he had changed his address but was not at that time able to advise what the new address for service was. The new address for service was notified to the Court on 5 October 2004. The applicant told me that he did not serve a copy of those notices of change of address on the Minister's solicitors. However, he says that someone assisting him did notify someone on behalf of the Minister. Mr Cramer, for the Minister, disputes service of a form of any change of address prior to the hearing on 11 October 2004.
I am prepared to accept, based upon the applicant's affidavit filed on 25 October 2004 as well as what he told me in court today, that he was probably not aware of the need for him to attend court on 11 October 2004. Accordingly, if the only issue was the non-appearance of the applicant on that day I would be prepared to reinstate his application. However, it is necessary for me to consider the other two bases upon which the application had been dismissed.
The applicant accepts that on 24 March 2004 he attended court and consented to an order made by Registrar Segal that he file and serve an amended application by 12 May 2004. A short minute of the order bearing the applicant's signature is on the court file. The applicant tells me however that he did not understand what that order meant. Nevertheless, I note that the applicant was assisted on that day by a Mandarin interpreter. I also accept that, consistent with normal procedure on directions hearings, the person representing the Minister would have done his or her best to explain the proposed consent orders.
In the circumstances, if the applicant did not understand the order that he was agreeing to, it was not the fault of the Minister. The order should have been complied with. On the other hand, I note that the applicant is a self represented litigant. If there was something arguable that could be advanced on behalf of the applicant in relation to the decision of the RRT, I would give him a further opportunity to put that argument.
The third basis for the dismissal of the application was that it disclosed no reasonable cause of action. That, in my view, remains the position. The judicial review application filed on 7 November 2003 simply states that the applicant is a member of Falun Gong and is worried about his safety. Two grounds of review were advanced. The first is that the “case officer” did not go through the right steps when considering the protection visa application. The second is that the “case officer” was biased.
There is nothing in the material before the Court to support the claim of bias. In the absence of particulars, that assertion has no substance. I invited the applicant to tell me this morning why he thought the presiding member was biased, but he was not able to say anything to support that claim.
In relation to the first ground of review, the applicant is concerned that he had more material to put before the RRT that was not considered. In that regard, I note that the RRT proceeded in his absence. Although the applicant was not able to tell me what procedural irregularity had occurred, it may be the issue of the further (unconsidered) information which the judicial review application is directed at. The court book establishes, and the RRT decision confirms, that the applicant was invited to a hearing to take place on 1 October 2003. The applicant initially accepted that invitation on 28 September 2003. However, on 30 September 2003, he advised the RRT in writing that he did not wish to attend.
That second response to the hearing invitation is unfortunately not included in the court book. However, Mr Cramer and the applicant have both provided me with copies of it. The applicant told me that at that time he was assisted by a person known to him as Ms Xue (who he apparently met at a railway station) and that Ms Xue had made a mistake in completing the second response to the hearing invitation on 30 September 2003. He invited me to telephone Ms Xue to confirm that. I did not accept that invitation.
It is apparent from a simple comparison of the first and second responses to hearing invitation that they were completed by the same person. Both documents assert that the applicant was, at that time, assisted by Ms Orchid Sit (a former migration agent). Ms Sit had, by that stage, ceased to be a registered migration agent, a fact pointed out to the RRT in a letter to the applicant dated 29 September 2003. The applicant denies receipt of that letter.
Whether or not either response to the hearing invitation was completed by the applicant or by Ms Sit or by the woman known to the applicant as Ms Xue, does not, in my view, matter. The fact is that the RRT was told clearly and in writing on 30 September 2003 that the applicant did not want to attend a hearing. He signed that document.
In the circumstances, whether or not any mistake was made by or on behalf of the applicant, the RRT was entitled to proceed in his absence. There is no other procedural irregularity apparent to me in the record of the RRT decision.
It does not appear to me that there is any arguable jurisdictional error in the decision of the RRT. In the circumstances, there is no point in reinstating the judicial review application.
Accordingly, I confirm the dismissal of that application upon the basis that the application fails to disclose a reasonable cause of action. I will therefore dismiss the application for reinstatement filed on 25 October 2004.
On the question of costs, Mr Cramer seeks an order for costs fixed in the sum of $700 on a party and party basis. The applicant told me that he would pay those costs if I thought it was fair. I am satisfied that costs of the order of $700 would have been reasonably and properly incurred on behalf of the Minister in dealing with the application before the Court. Costs of at least that order would also be payable under the Court's event based costs scale.
I will secondly order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $700.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 January 2005