SZDLO v Minister for Immigration

[2004] FMCA 1035

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLO v MINISTER FOR IMMIGRATION [2004] FMCA 1035

MIGRATION – Protection visa – political opinion – failure to attend Tribunal hearing.

Applicant: SZDLO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1292 of 2004

Delivered on: 7 October 2004

Delivered at: Sydney

Hearing date: 7 October 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Mr R. Beech-Jones

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent's costs, set in the amount of $3000, pursuant to Rule 21.02 (2) (a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1292 of 2004

SZDLO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application filed in this Court on 4 May 2004 seeking a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 March 2004 affirming the decision made on

   
   

   18 June 2003 by a delegate of the respondent Minister to refuse a protection visa to the applicant. 

2. The applicant is a citizen of India who arrived in Australia on

   
   

   12 February 2003.  On 1 May 2003 he made an application to the respondent's Department for a protection visa.  He claimed protection on the grounds of political opinion, his involvement with the Congress I party, which was in opposition to the ruling BJP party, and the failure of police and authorities to protect him from harassment and abuse. When this visa application was refused he sought review by the Tribunal in July 2003.

3. On 3 March 2004 the Tribunal wrote to the applicant advising that on the information before it, the Tribunal was unable to make a favourable decision and invited him to a hearing, and further advised that if he did not attend then the Tribunal could make a decision without further notice. The letter provided a time, date and place for the hearing [see Court Book 63]. The applicant was represented by a registered Migration Agent [see CB 58] and the agent responded on the applicant's behalf stating that the applicant would not be attending and asking that the hearing be cancelled and that the Tribunal should make a decision on the basis of documents which he had submitted at the time of lodgement [see CB 69].

4. The Tribunal proceeded to make a decision on the material available to it.  The Tribunal was unable to be satisfied in relation to the various factual claims put forward by the applicant. In particular, it found that the applicant had provided very few details, and that had the applicant attended the hearing it would have asked him to provide more details. Without this detail the Tribunal was unable to be satisfied as to the truth of his claims relating to harm from police. It found ultimately that it was not satisfied that the applicant is a person to whom Australia has protection obligations.  Accordingly, the delegate's decision was affirmed. 

5. In his application to this Court, the applicant sets out eight grounds in support of his application and at point nine says:

   “I will provide more details later.”

   Each of the grounds is of one sentence. They are devoid of any particularity, are formulaic and are strikingly similar in their content and style to a number of other applications often seen in this Court.

6. On 11 August 2004 the applicant attended at the first Court date in this matter and was assisted by an interpreter in the Gujurati language.  The applicant signed Short Minutes of Orders on that date, and the Court subsequently made orders that, amongst others, the applicant:

   “(2) file and serve an amended application giving full particulars of each ground of review relied upon by 22 September 2004.” 

   “(5) the applicant file and serve any written submissions on or before five working days prior to the hearing date.” 

   The Court also ordered (order 4) the matter be listed for hearing at 2.15 pm, on 7 October 2004 at John Maddison Tower.

7. No amended application giving full particulars has been filed and no written submissions have been received. I also note the applicant was given an opportunity to access the Court’s Legal Advice Scheme. At the hearing before me the applicant [who was self-represented] claimed that he did not comply with those orders because he did not receive the Court Book from the respondent's solicitors and that he was waiting for that Court Book before proceeding. 

8. Mr Beech-Jones for the respondent Minister, tendered a file copy of a letter from the respondent's solicitors addressed to the applicant enclosing the Court Book which was sent on 31 August 2004 to the applicant at the address for service provided by the applicant in his application to this Court.  Mr. Beech-Jones submitted that there was nothing on the respondent’s file to indicate that this letter was returned as undeliverable. I note that the applicant who appeared before me today with the assistance of a Gujarati interpreter, told me that he had received other documentation and, other correspondence, addressed to the address that he had given for service in his application.  In particular, a letter which he claims was from Mr Ian Archibald who was the nominated panel lawyer pursuant to the Court's Legal Advice Scheme, and also received a copy of the respondent's outline of submissions sent to the address for service appearing in the applicant's application to this Court. 

9. At the hearing today the applicant sought an adjournment of this matter seeking further time to prepare his case. His argument was that he had not received the Court Book and therefore had not prepared. I also heard submissions from Mr. Beech-Jones for the respondent. I refused to grant this adjournment. Relevantly:

   1)The applicant claims that the address provided by him in his application to the Court was incorrect in that the flat number should have been “4” not “3”. The street address appeared to be correct. For this reason he claims he did not receive the Court Book and was waiting for the Court Book before proceeding.

   2)The incorrect flat number is due to the applicant himself supplying the wrong detail.

   -The date for the filing and serving of the Court Book was on or before 1 September 2004. The applicant made no attempt to contact the respondent solicitors to advise he had not received it.

   -    At the hearing the applicant advised he did receive some letters addressed to the “wrong” address. For example he said he received a letter from the Legal Advice Scheme panel lawyer with his contact details.

   -    The applicant was given the opportunity to access legal advice and was unable to provide a satisfactory response as to why he did not adequately pursue this. The best he could say to the Court was that he rang and the first time there was no answer and the second time “he [the lawyer] was not there”.

   3)The applicant has made no attempts to properly pursue his application even when he had received relevant documents

   4)If the adjournment was to be granted, there is nothing before the me to show that the applicant would act differently, that is with more vigour in pursuing his case

10. Mr. Beech-Jones also submitted, in relation to the utility of granting the adjournment, and in particular on the efficacy of the applicant’s case that it was a “hopeless case”. The key elements are:

    -The applicant did not attend the hearing before the Tribunal

    -He had been given an opportunity to do so

    -The Tribunal decision was based, with prior notice to the applicant, on an inability to be satisfied on the material before it that the applicant’s various claims were true

    -This is not a Tribunal decision that involves adverse materials or findings

11. The applicant provided no answer to these submissions and gave no explanation as to why he did not attend the Tribunal hearing other than he had “some problems”. I do not see any utility in granting the adjournment in all these circumstances and in particular could not be satisfied that the applicant would pursue his claims with any vigour.

12. The applicant was asked today to provide any further matters to those already set out as the grounds of his application to this Court.  He did not add to those grounds. 

13. Counsel for the respondent Minister has submitted that these grounds include allegations of bias, bad faith, lack of natural justice and that the Tribunal “denied the evidentiary proof of my claims” which presumably are said to give rise to jurisdictional error on the part of the Tribunal. No particulars have been provided, nor have submissions been filed in support. In any event, Counsel for the respondent has submitted all the grounds are specious. 

14. I agree that in these circumstances these grounds are without merit:

    ·The Tribunal had put the applicant on notice that on the material before it, it was unable to make a decision in the applicant's favour.  It invited him to attend a hearing to support his claims and put him on notice of the possible consequences if he did not attend.

    ·The applicant chose not to attend the hearing, and through his agent, told the Tribunal to make a decision on the basis of the documents he had submitted with his application.

    ·The Tribunal was unable to be satisfied of the various facts he had put forward in support of his claims.

    ·In these circumstances and in the absence of anything else before me the applicant’s claims in relation to a denial of natural justice are without merit.

    ·Allegations of bad faith and bias (“a decision which was preset in the back of its mind”) are of course serious matters involving, amongst other things personal fault on the part of the Tribunal. It is well settled that such allegations should not be made lightly and must be clearly alleged and proved. There is nothing before me, nor is there anything evident in the material before me to show that the Tribunal failed to make a bona fide attempt to exercise its power.

15. I agree with the respondent's counsel that no question of jurisdictional error has arisen in these circumstances. Accordingly the application should be dismissed. 

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date:  21 January 2005