SZCPE v Minister for Immigration
[2004] FMCA 468
•21 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPE v MINISTER FOR IMMIGRATION | [2004] FMCA 468 |
| MIGRATION – Review of decision of Registrar to dismiss application – where applicant’s reasons for not attending directions hearing not found satisfactory – where claim lacks particulars. |
| Applicant: | SZCPE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 238 of 2004 |
| Delivered on: | 21 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 21 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
The applicant pay the respondent's costs of all the proceedings to date which I assess in the sum of $1,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 238 of 2004
| SZCPE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application to review an order of a Registrar dismissing an application for review of a decision of the Refugee Review Tribunal on the basis that the applicant failed to attend two directions hearings in relation to the matter.
The applicant is a person of Chinese origin who, I am prepared to accept, speaks almost no English and probably reads none at all. She stated in her affidavit in support of her application that she had confused the months and believed that the hearing for directions was to take place in July and not in June 2004.
The application which she signed clearly states that the first directions hearing will take place in this court at 2.15 pm on Friday 4 June 2004.
I asked the applicant a number of questions. I asked her these questions first from the bar table. The story which she told me was that she had never lived at the address which was given as her address to the RRT and that she had never received any documents. The applicant told me that she had left her affairs in the hands of a series of migration agents. The last of these agents had sent an employee to accompany the applicant to court today.
I was concerned as to how the applicant was aware of the decision of the Registrar to strike out her application. It appears from the evidence filed by the respondent that all communications with the applicant were made to her address at John Street. If she did not reside there how could she have known what occurred?
I therefore requested that the applicant take an affirmation and give her evidence from the witness box. I explained to her the seriousness with which a court considers such evidence. I asked the applicant how she came to know about the fact that her case had been dismissed. She said that she went to her migration agent and was told. It is difficult to understand how the migration agent may have known. Her name does not appear on any papers filed with the court or with the Refugee Review Tribunal. The applicant then told me that she had been to see the migration agent two or three times since January or early February.
Even if the current migration agent was not the one who filled in the application form to the court and gave the applicant's address as John Street Ultimo, it is difficult to believe that the applicant would not have taken the application with her to the migration agents when she went to discuss her case. The application has upon it the date of the directions hearing. I did not ask the applicant about this but it also concerns me that I have no evidence that any letters sent to her at the John Street address were returned.
In the light of these matters I am unable to be satisfied that the applicant's alleged reason for not attending the hearing is genuine or true. I am equally not satisfied that the applicant did not receive notice of the second directions hearing where her failure to attend resulted in the dismissal of her application. The applicant has not been able to satisfy me that there was good reason why I should review the decision of the Registrar and provide her with a hearing of her claim. I did ask the applicant why she believed the Tribunal had erred in law in the manner in which it came to its decision. The applicant told me that she believed that the Tribunal had acted unfairly towards her because it had given her only seven days to provide certain information. However, the grounds and reasons set out in her application make no mention of this. She says in that document that the decision of the RRT is neither fair nor reasonable. She says that there was a serious procedural error that had taken place in respect to the procedures, both of the Department and of the Tribunal. It would seem that her particulars of this are that the Tribunal and the Department ignored the fact that she had submitted evidence of being persecuted for practising Falun Gong; but the Tribunal did no such thing.
Between [CB 70] and [72] the decision deals with her allegations of harm. Whilst the court would wish to be sympathetic to persons who seek asylum in this country and whose knowledge of court procedures and of the English language is strictly limited there is also a duty upon it to ensure that its procedures are complied with and that the lists, particularly the lists in migration matters, are effectively administered.
For all the reasons set out in this judgment I dismiss the application and I order that the applicant pay the respondent's costs of all the proceedings to date which I assess in the sum of $1500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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