SZCPY & Anor v Minister for Immigration
[2004] FMCA 646
•23 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPY & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 646 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Mongolia – judicial review application dismissed by a registrar when the applicant failed to appear at a directions hearing. PRACTICE AND PROCEDURE – Motion for reinstatement of judicial review application – whether sufficient explanation advanced for the non attendance of the applicant – non-receipt of correspondence by the applicant due to out of date address for service being given – relevant documents prepared by a migration agent for a fee – observations on the conduct of the migration agent – motion dismissed. |
Federal Magistrates Act 1999 (Cth), s.104
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.425, 425A, 441A
Hassan v Minister for Immigration [2002] FCA 377
KM&A Chadwick Pty Ltd v Yeung No NG3187 of 1994 FED No. 354/95
SZBRB v Minister for Immigration [2004] FMCA 285
First Applicant: Second Applicant: | SZCPY SZCPZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ271 of 2004 |
| Delivered on: | 23 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 23 September 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms S Goodman Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The Court directs that the transcript of today’s proceedings be obtained and that the transcript be sent, together with the Court’s reasons for judgment to the Legal Services Commission and the Migration Agents Regulatory Authority for such action as they consider appropriate.
The motion, of which notice was given on 1 July 2004, is dismissed.
The first applicant is to pay the respondent’s costs and disbursements of and incidental to the motion, fixed in the sum of $800.
Both parties have leave to apply within 28 days for an order that Mr Evgene Kyselov pay the costs that the first applicant has been ordered to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ271 of 2004
| SZCPY, SZCPZ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of motion filed on 1 July 2004. The motion seeks the reinstatement of a judicial review application that was filed on 4 February 2004. That application sought judicial review of a decision of the Refugee Review Tribunal (“the RRT”) made on 3 December 2003 and handed down at the same time.
The relevant background facts are set out in written submissions prepared on behalf of the respondent Minister by Ms Goodman.
I adopt paragraphs 1, 2 and 3 of those submissions for the purposes of this judgment:
The applicants, who are husband and wife claim to be citizens of Mongolia. They arrived in Australia on 3 February 2003 and on 3 March 2003 applied for a protection (class XA) visas. Their applications were based solely on the applicant husband's claims to fear persecution. Therefore, their applications will be referred to as the application. On 17 March 2003 the application was rejected by a delegate of the Minister. The applicants applied to the RRT for review of the delegate's decision on 11 April 2003 and on 2 January 2003 the RRT handed down its decision, affirming the delegate's decision.
The applicant husband claimed he is a member of the Mongolian People's Revolutionary Party (the Party) and that he began to criticise the Party and was threatened by state security that he may disappear if he did not stop criticising the Party.[1]
In the Federal Magistrates Court
The applicants applied for review of the RRT’s decision in the Federal Magistrates Court on 4 February 2003. The matter was listed for a directions hearing on 28 May 2004 at 2.15pm. The applicants did not appear at that directions hearing and the Court ordered that the matter be adjourned for a further directions hearing which was set down for 11 June 2004 at 2.15pm. The Court also ordered the respondent to notify the applicants of the adjournment. By letter dated 30 May 2004, the respondent notified the applicants of the adjourned directions hearing and that if the applicants did not appear the respondent would seek to have the application dismissed pursuant to Part 10.01 rule (2)(b) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules)[2].
When the matter was called on for directions on 11 June 2004 there was no appearance by the applicants. Accordingly, the Court dismissed the application pursuant to Part 10.01 rule (2)(b) of the Federal Magistrates Court Rules and ordered the respondent to notify the applicants that their application had been dismissed. This was done by way of letter dated 30 June 2004. The Court's orders were entered on 16 June 2004.
Reinstatement application
By their notice of motion filed on 1 July 2004, the applicants now seek to have the matter reinstated. In that application the applicants claim (at paragraph 2) that they missed the directions hearing on 11 June 2004 "due to circumstances below my control". They appear to claim that they came to the directions hearing at the scheduled time, but were not approached by the representative's lawyer and no Mongolian interpreter was provided.
The Minister's representative attempted to locate the applicants at the Court prior to the directions hearing on 11 June 2004 but was unable to find them. The applicants did not appear when the matter was called.
[1] RRT decision page 5
[2] Annexure A to affidavit of Angela Louise Wood dated 11 June 2004, filed in Court on 11 June 2004
While there were two applicants in the proceedings before the RRT and in the proceedings in this Court, only the first applicant has appeared before me. I understand that the second applicant is the first applicant's wife and did not make any independent claims of persecution. The fate of her application depends upon the fate of his application. In these reasons, I refer to the first applicant as the applicant.
As noted in that statement of background facts, the judicial review application was dismissed by Registrar Hedge on 11 June 2004 because the applicant had failed to appear, and had also failed to appear at an earlier directions hearing. I note that the applicant also failed to attend a hearing, to which he was invited, before the RRT.
It is not clear whether the motion is based upon rule 16.05(2) of the Federal Magistrates Court Rules which permits the Court to set aside an order made in the absence of a party or whether it is an application under s.104 of the Federal Magistrates Act 1999 (Cth) seeking the review of a decision of a Registrar. Nothing turns on that issue, in any event, as the same consideration can be given to the motion on either basis.
In the notice of motion, the applicant says that he missed the directions hearing on 11 June 2004, due to circumstances beyond his control. The notice of motion further states that the applicant came to the directions hearing at the scheduled time but he was not approached by the Minister's lawyer and no Mongolian interpreter had been provided. The applicant told me a number of relevant things from the bar table and later adopted those statements as evidence. He told me that he had moved on 3 August 2003 from his former address in Surry Hills to his present address in Darlinghurst. I accept that evidence. I note that the hearing invitation was sent to the applicant by the RRT to his former Surry Hills address by letter dated 16 September 2003. Given that the applicant had moved by that point it is understandable that he may not have received the hearing invitation.
However, there is nothing before me to indicate that the RRT had been put on notice of any change of address. In the circumstances, on the basis of the material before me, I conclude that the RRT fulfilled its obligations in inviting the applicants to a hearing.
I asked the applicant why he put on his judicial review application filed on 4 February 2004 as his address for service the address at Surry Hills that he had not lived at since 3 August 2003. He told me that his application had been filled out by his migration agent, that is, Mr Evgene Kyselov, the same person who represented the applicant before the RRT. It is impossible to believe that Mr Kyselov was not aware that the applicant no longer lived at the Surry Hills address when that application was completed. He must have known that the applicant had failed to attend a hearing before the RRT and that the hearing invitation had been sent to an address at which the applicant no longer lived. The applicant told me that he did not read the judicial review application before he signed it. The handwriting of his signature is different from the handwriting in the body of the application. The applicant told me that Mr Kyselov filled out the application form and that he, the applicant, simply signed it. It was Mr Kyselov who decided what to put in the application. The applicant also told me that it was Mr Kyselov who filled out the notice of motion filed on 1 July 2004. Once again, the applicant simply signed the document without reading it. This leads me to the view that it is Mr Kyselov, rather than the applicant, who appears to be in control of the judicial review proceeding. It also leads me to the view that the address for service put on the judicial review application was obviously wrong. The wrong address for service was either put on deliberately so that the applicant would not receive correspondence directed to him, or as a result of gross carelessness.
The applicant told me that the did not, in fact, receive correspondence sent to him by the Court and the Minister's solicitors. He states that he did attend the Court on 11 June 2004 because his migration agent had told him that he needed to attend court then. I note that 11 June 2004 was the original return date given for the application when it was filed. I understand that that return date was initially changed to 27 May 2004, in order to ensure that a Mongolian interpreter was available. The directions date was then put back to 11 June 2004 when the applicant failed to appear on 27 May 2004. It does appear that there was no Mongolian interpreter available on 11 June 2004. It appears that the applicant may have attended court but did not understand when his matter was called. I asked the applicant whether there was any reason why Mr Kyselov could not attend at court on 11 June 2004 to assist him. He could give no reason. He told me that Mr Kyselov is now in Switzerland but, as I understand it, he was not in Switzerland on 11 June 2004.
The applicant told me that he has paid Mr Kyselov $1,600 for his services. I accept that evidence. The applicant has got very little for his money. In addition, there is no indication that Mr Kyselov is a legal practitioner entitled to charge for his services in respect of court proceedings. Based upon the applicant's evidence, it was Mr Kyselov's fault that the applicant did not receive correspondence and was not made aware of his need to attend court on 27 May 2004. He probably did attend court on 11 June 2004 and probably was not aware that his matter was called when it was called.
In ordinary circumstances, that might call for an order reinstating the judicial review application. However, this case does not present ordinary circumstances. In the first place, there is a real possibility that an incorrect address for service was given intentionally. There is a real possibility that the migration agent, with or without the knowledge of the applicant, engaged in a scheme to attempt to frustrate and prolong the court proceedings. Even if that is not the case, I would not reinstate the application. That is because I consider that the application for judicial review has no prospect of success.
I have regard to the affidavit of Susan Goodman made on 10 September 2004. I also agree with and adopt paragraph 5.1 of Ms Goodman's written submissions:
Where there are no prospects for success on a substantive application, reinstatement would be futile, therefore an application for reinstatement ought to be refused. This approach was taken by Federal Magistrate Raphael in SZBRB v Minister for Immigration [2004] FMCA 285 where he refused to reinstate proceedings where the facts indicated there was no possible utility in reinstating and therefore he held that it would not be in the interests of justice to reinstate the matter (see also KM&A Chadwick Pty Ltd v Yeung No. NG3187 of 1994 FED No. 354/95; Hassan v Minister for Immigration [2002] FCA 377).
In their application to the Federal Magistrates Court, filed on 4 February 2004, the applicants seek to have the RRT’s decision set aside and the matter remitted to the RRT for determination according to law. They claim that the RRT erred:
i)in its determination of whether the First Applicant had a well-founded fear of persecution for the reasons of political opinion; and
ii)by not accepting that the Mongolian authorities would be unable to provide the Applicant with a sufficient level of protection.
No legal error is identified in the application which would therefore be open to dismissal under rule 13.10(a). In any event for the reasons discussed below, the RRT did not make any jurisdictional error.
The RRT’s decision
b)The RRT’s determination as to whether the applicant husband had a well-founded fear of persecution for the reasons of political opinion
The RRT did not accept that the applicant husband had a well-founded fear of persecution for the following reasons:
·the application was very vague and general;
·the application provided no supporting information about the applicant's membership of the party or if he was a member at all and no detail as to when, where or why the applicant husband criticised the Party or the nature of the criticism or under what circumstances the threat of disappearance was made;
·the applicants did not apply for protection visas until the day on which their visas expired and the RRT held that such unexplained delay is not consistent with fear of persecution for a Convention based reason;
·the applicant husband resided at the same address in Mongolia for at least ten years prior to his departure, he was employed as an engineer until he left Mongolia and apart from the claimed threat the applicant husband had suffered no ill effects from the inference that he is in fear of persecution for a Convention-based reason; and
·country information conflicted with the applicant husband's claims and the RRT preferred the country information.
The RRT found that the above facts and findings were inconsistent with fear of persecution for a Convention reason. Therefore, the RRT concluded that on the totality of the evidence before it the applicant husband did not have a subjective fear of persecution and accordingly there was no basis for the applicant's claims that he had a well-founded fear of persecution if he returns to Mongolia now or in the foreseeable future.
The respondent submits that the above findings of fact were open to the RRT and the RRT did not err in finding that the applicant husband did not have a well-founded fear of persecution.
c)the RRT’s failure to accept that the Mongolian authorities would be unable to provide the applicant with a sufficient level of protection
Having found that the applicant husband did not have a subjective fear of persecution for a Convention-based reason the RRT was not required to consider whether the applicant could rely on state protection. The RRT made no findings in this regard. As the RRT was not required to consider this issue, it cannot be criticised for not having done so. Accordingly, the respondent submits the RRT did not err by not considering whether the Mongolian authorities would be able to protect the applicant.
d)Applicant's failure to attend RRT hearing
On 16 September 2003, the RRT wrote to the applicant husband and his adviser inviting the applicants to attend a hearing on 2 December 2004.[3] The letter advised the applicants that if they did not attend the hearing the RRT could make a decision on their case without further notice. The letter to the applicants was returned unclaimed and the applicants did not appear before the RRT on 2 December 2003. Accordingly, pursuant to s.426A of the Migration Act the RRT decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
Section 426A of the Migration Act provides, relevantly, that if an applicant is invited under s.425 to appear before the RRT and does not appear on the day, time and place as scheduled, the RRT may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Section 425A of the Act sets out what must be included in the notice of invitation to appear and provides that the notice must be given to the applicants, relevantly, by one of the methods in s.441A. A letter, which included all of the matters required by s.425A, was sent to the applicants' last address for service provided to the RRT by the recipient in connection with the review[4] and was dispatched within three working days of the date of the document by prepaid post[5].
Having satisfied the criteria in ss.425, 425A and 441A, the respondent submits the RRT was entitled to decide to make its decision when the applicants did not attend the hearing, pursuant to s.426A of the Act.
Conclusion
The RRT made findings that were open to it on the material before it and did not make a jurisdictional error. Accordingly, the applicants' substantive application to the Federal Magistrates Court must fail.
[3] RRT’s decision at page 4
[4] See the applicants’ application to the RRT, section C, on page 2 of the application - the applicants provided their address for service
[5] See the 425A letter and the RRT’s dispatch records
In addition, it appears from the applicant's own evidence today that he has no understanding of or belief in his own judicial review application. It is simply a creation of his migration agent.
In the circumstances, I will dismiss the motion.
On the question of costs, Ms Goodman seeks an order for costs fixed in the sum of $800. The amount sought is very modest on any basis. In my view, the Minister could have sought considerably more. The applicant queried why a costs order was required. I explained to him that, in this matter, I considered that costs should follow the event.
There is a question of whether the applicant or his migration agent, Mr Kyselov should pay the costs. Based on what the applicant told me, Mr Kyselov ought to bear the liability. However, I have not heard from Mr Kyselov. I will order that the applicant bear the costs, but I will give both parties the opportunity to apply for an order that Mr Kyselov bear those costs. The circumstances of this matter also call for the Court to refer the transcript of the proceedings and my judgment to the Legal Services Commission and the Migration Agents Regulatory Authority. I will therefore prepare written reasons whether or not the parties request them.
The Court directs that the transcript of today's proceedings be obtained and that the transcript be sent, together with the Court's reasons for judgment, to the Legal Services Commission and the Migration Agents Regulatory Authority for such action as they consider appropriate. I will order that the motion, of which notice was given on 1 July 2004, is dismissed and that the applicant is to pay the Minister's costs and disbursements of and incidental to the motion, fixed in the sum of $800. I further order that both parties have leave to apply within 28 days for an order that Mr Evgene Kyselov pay the costs that the applicant has been ordered to pay.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 September 2004
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