SZCBM v Minister for Immigration

[2007] FMCA 1169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1169

MIGRATION – Review of Refugee Tribunal decision – where applicant failed to attend directions hearing – where applicant applied to have orders set aside - where applicant failed to attend hearing before Federal Magistrate – where application dismissed pursuant to Federal Magistrates Court Rules – further application to set aside orders – where applicant did not respond to a s.424A letter.

Migration Act 1958, ss.65, 424, 424C, 425

Applicant: SZCBM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2636 of 2003

Judgment of: Raphael FM

Hearing date: 6 July 2007

Date of last submission: 6 July 2007

Delivered at: Sydney

Delivered on: 6 July 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $300.00.

3. No application be accepted for filing by or on behalf of this applicant in respect of the review of the decision of the Refugee Review Tribunal made on 8 October 2003 and handed down on 30 October 2003 or in respect of the decision of the delegate of the Minister on 18 June 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2636 of 2003

SZCBM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 2 December 2003 the applicant filed an application for review of a decision of the Refugee Review Tribunal made on 8 October 2003 and handed down on 30 October 2003.  On 28 April 2004 the matter was listed for directions before Registrar Hedge.  The applicant failed to attend the directions hearing which was adjourned until 12 May.  The applicant was advised of the adjourned hearing by way of letter.  These facts are deposed to in an affidavit of Svetlana Zarucki dated 11 May 2004.  Ms Zarucki filed a further affidavit on 19 May 2004 which had been sworn on 18 May 2004.  On 12 May 2004 the matter was again adjourned until 19 May 2004 and the respondent was ordered to inform the applicant.  Ms Zarucki’s second affidavit deposes to these facts and to the fact that the applicant was again informed.  On 19 May 2004, the applicant again did not attend and the application was dismissed by the Registrar.

2. The applicant could have brought proceedings in the Court to set aside the orders of the Registrar but did not do so.  After a reasonable period of time, the applicant became an illegal non-citizen liable to be deported but no steps have been advised to me of attempts to take him into immigration detention and to deport him to Korea.  He has remained in Australia.

3. On 18 April 2007 the applicant took out a further application in this Court to set aside the orders of Registrar Hedge.  That application was set down for hearing before me on 25 May 2007.  The applicant did not attend.  I struck out the application.  On 7 June 2007 the applicant filed a further application requesting that the Court set aside the orders which I had made on 25 May 2007.  In an affidavit filed by the applicant he stated that he had miscalculated the hearing date and he could not attend the Court hearing because he thought it was on the

   
   

   28 May 2007.  He states that he did not know until recently that there was a serious jurisdictional error in the Tribunal’s decision by failing to offer him a chance to present his case before the Tribunal member.  He stated that the migration agent whom he had authorised to act on his behalf owing to his lack of English-speaking ability, did not do his job properly and presented his case wrongly.

4. In order to assist me to make up my mind as to whether or not I can set aside the order of 25 May 2007, I asked the applicant to address me on why he believed the Tribunal had made an error of law in the way in which it came to its decision. The applicant told me that the request for him to come to a hearing with the Tribunal had gone to his agent and that his agent had gone bankrupt and so he did not know about the hearing. But in fact that is not correct. There was no hearing. The reason that there was no hearing was that the applicant was sent a letter under s.424 of the Migration Act 1958 (“the Act”), as it then was, requesting information. The Tribunal had expressed a view that it did not have sufficient information concerning various matters raised by the applicant in his application and it also was concerned that the application completed by this gentleman bore remarkable similarities to another completed by a fellow Korean some time previously. The applicant did not respond to the s.424 letter and therefore the Tribunal determined, as it was entitled to do under ss.424C(1), 425(2)(c) and 425(3), not to hold a hearing.

5. In its findings and reasons the Tribunal pointed out that the information provided by the applicant was scant and vague and that the applicant had failed to respond to a request by the Tribunal for further information that might flesh out the claims. The Tribunal criticised other failures to provide sufficient information which would allow it to reach the state of satisfaction required under s.65 of the Act. The Tribunal also noted the similarity between the application and the earlier application for a protection visa that had come to the notice of the Tribunal in 2002. The Tribunal came to the view that the applicant’s claims were fabricated and on this basis was unable to say that he was a person to whom Australia owed protection obligations.

6. Although the law has changed in several particulars since 2004 there is still no compulsion upon the Tribunal to require an applicant to attend for a hearing when the applicant has failed to respond to a letter written under s.424 of the Act. On the basis of the information before it the Tribunal was entitled to come to the views that it did. I am unable to see any jurisdictional error in the Tribunal’s decision.

7. In the light of the above there will be no benefit, in my view, in granting the applicant the relief he seeks. If I set aside the order which I made on 25 May 2007 we would still be left with a decision of Registrar Hedge made some three years earlier. The applicant has not explained his delay in coming back to the Court other than to say that he had only just realised that a jurisdictional error might have occurred. He has not explained what that jurisdictional error is, other than to say that he was not granted a hearing. But as I have already said, he had no right to a hearing after he had failed to comply with s.424 by not responding to the letter. His excuse that the letter may have gone to his migration agent is totally incorrect.

8. Members of this Court and Judges of the Federal Court have expressed their concern that persons whose applications for judicial review have been completed are allowed to remain in this country for several years, and then commence new proceedings, such as the one currently before me, that will have the effect of allowing them to remain in the country for further time whilst they go through the appeal procedures in the Federal and High Courts.  I add my voice to those criticisms.

9. I dismiss the application.  I order that the applicant pay the respondent’s costs which I assess in the sum of $300.  However, I will make an additional order that no application be accepted for filing in this Court in respect of the review of a decision of the Refugee Review Tribunal made on 8 October 2003 and handed down on 30 October 2003 or in respect of a decision of a delegate of the Minister made on 18 June 2003 in respect of the applicant.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  6 July 2007