SZEDP v Minister for Immigration (No.3)
[2005] FMCA 1463
•13 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDP v MINISTER FOR IMMIGRATION (No.3) | [2005] FMCA 1463 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – applicant claimed persecution in People’s Republic of China due to membership of Falun Gong – judicial review application dismissed when applicant failed to appear at final hearing. PRACTICE AND PROCEDURE – Motion for reinstatement of judicial review application – where there is sufficient explanation in advance for non appearance of applicant. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth) r.13.03A(c) ,13.03A(d)
SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 102
SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) [2005] FMCA 573
SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1083
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
| Applicant: | SZEDP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2489 of 2004 |
| Delivered on: | 13 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 13 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Mandarin interpreter.
| Advocate for the Respondent: | Mr J Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The applicant’s Notice of Motion is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $300.
No further application by the applicant to review the decision of the Refugee Review Tribunal made on 23 June 2004 be accepted for filing except with leave of this Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2489 of 2004
| SZEDP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was brought before the Court by a Notice of Motion by the applicant filed on 28 July 2005 seeking to have the matter reinstated. By two previous decisions of this Court SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 102 and SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) [2005] FMCA 573 the matter was dismissed.
At the time of the first hearing, the applicant failed to appear. However, the substantive matter was considered under the provisions of the Federal Magistrates Court Rules 2001 (Cth) pursuant to Rule 13.03A(d). In respect of the second decision, the matter was listed as a Notice of Motion seeking reinstatement but there was no appearance by the applicant and the matter was dismissed for non appearance.
The applicant has filed a new Notice of Motion seeking reinstatement together with an affidavit filed on the same date. The solicitor for the respondent sought orders dismissing the Notice of Motion on the grounds set out in the reasons of this judgment. In the circumstances,
I considered it appropriate to accede to the application sought by the respondent’s solicitor to dismiss the matter. Consequently, I made orders on the completion of the hearing and indicated I would publish my reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 August 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 June 2004 and handed down on 14 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
10 March 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEDP”.
The judgments of this Court, namely SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 102 and SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) [2005] FMCA 573, set out the details of this matter and I will not repeat them here.
The judgment of the Federal Court of Australia, namely SZEDP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1083 dismissed two applications filed in that Court by the applicant. On 13 July 2005 the applicant filed an application for leave to appeal from the interlocutory judgment of this Court given on
12 April 2005 and an application for an extension of time within which to file and serve a notice of appeal from the interlocutory judgment given on 12 April 2005. On 28 July 2005 her Honour Branson J dismissed both applications.
Notice of Motion
On 28 July 2005 the applicant filed an application supported by an affidavit which contained the following statement as the explanation for his failure to attend Court on 12 April 2005:
“I was unable to attend the final hearing arranged for me on
12 April 2005 due to the reasons beyond my own control.
I suffered from serious stomach ache from early April until 20th of April. I was unable to get up from bed and only depended on rice porridge every day to live on as I didn’t have any money to buy some medicine. I could only pray for the recovery every day. During those days I didn’t remember anything but lying down on my bed. I had this stomach problem for years. Only by taking traditional Chinese herbs regularly I would overcome the pain. However I was not able to afford the medicine due to my unemployment status, I had to depend on the strength of my own body to recover. Luckily I was able to get over it. I didn’t visit my family doctor as I didn’t have medicare card and I could not pay to see a doctor.” (Errors included)
No other evidence was supplied in support of this claim.
Reasons
The applicant failed to appear at the scheduled Tribunal hearing and the Court proceedings on three occasions. The circumstances of his failure to appear before the Tribunal were recorded in the decision of Tribunal member S McIllhatton of 23 June 2004:
“On 23 April 2004 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 22 June 2004. The applicant was advised that if he did not attend the hearing and a postponement was not granted the Tribunal may make a decision on his case without further notice. This letter was sent to the applicant at his home address as well as to his mailing address (a post office box) which he had indicated on his application for review form.
On 17 May 2004 the letter sent to the applicant’s home address was returned to the Tribunal marked ‘return to sender – unclaimed’. No reply was received in respect of the letter which was sent to the applicant’s mailing address and it was not returned to the Tribunal unclaimed.
On 16 June 2004 an officer of the Tribunal attempted to contact the applicant through a mobile telephone number which he had provided on his application for review form. The officer was told by the person who answered the phone that she had the wrong number.
The applicant did not provide any other contact details, such as a home telephone number, on his application for review form. He has not provided the Tribunal with any details indicating a change of address. He does not have an authorised recipient or adviser. Apart from lodging his application for review form on
8 April 2004, he has not made any contact with the Tribunal to ascertain the status or progress of his application.
A check of the Department’s movement records indicate that the applicant is still in Australia.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. He did not contact the Tribunal to explain his non-attendance or to seek a postponement. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.” (CB pp.57-58)
The matter was set down for final hearing before me on 17 February 2005. On that day there was no appearance by the applicant at the scheduled 10.15 a.m. hearing and a fifteen minute period of grace was allowed should the applicant be experiencing difficulty in locating the Court. At the expiry of that period, the matter was called in the precincts of the Court but there was no appearance by the applicant. The applicant had previously appeared before me at a directions hearing and time had been spent in informing the applicant of the location for the hearing as well as providing him with a map which detailed the location of the Court. When the applicant appeared at the directions hearing he had the assistance of a Mandarin interpreter who explained the various steps leading up to the hearing on 17 February 2005. I was satisfied at that time that the applicant had been adequately informed of the date, time and location of the Court and the significance of the hearing on that date. The Court file did not disclose the recording of any message received from the applicant explaining his absence at the hearing: see SZEDP [2005] FMCA 102.
On 7 March 2005 the applicant filed a further application and supporting affidavit seeking reinstatement of the matter and a hearing was scheduled on 12 April 2005 at 11.15 a.m. There was no appearance by the applicant at that time and a period of grace of fifteen minutes was granted. When the matter was called me at 11.30 a.m. there was still no appearance by or on behalf of the applicant and the matter was dismissed: see SZEDP [2005] FMCA 573.
At the current hearing of the Notice of Motion seeking reinstatement, the applicant appeared self represented with the aid of a Mandarin interpreter. He indicated he was relying upon his application and supporting affidavit previously filed and that he had not prepared any written submissions for this hearing. When invited to make any oral submissions in support of his application, the applicant recounted details of his illness that was the subject of his affidavit. When asked if he had made any attempt to notify the Court of his illness and inability to attend, he indicated he did not know the contact details of the Court. When it was pointed out to him that he had received various pieces of correspondence from the Court and the Court Registry which contained contact details, the applicant failed to respond. The applicant was also unable to provide any satisfactory explanation for his failure to attend the previous Court hearings or the Tribunal hearing.
Mr J Bird, Solicitor of Phillips Fox, appearing for the respondent had appeared at the previous hearings of this matter and at the hearing on 24 January 2005 and had filed detailed written submissions which were supported by oral presentation of the respondent’s case: see SZEDP [2005] FMCA 102. After considering that material and reviewing the Tribunal’s decision, I dismissed the application on the grounds that the applicant had simply failed to provide the delegate and the Tribunal with sufficient information to support his claim. I also found that he had failed to prosecute the matter in not particularising or identifying the nature of his claim against the Tribunal’s decision. It was noted that the applicant was offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) but had declined that offer. When the applicant was invited to indicate if there were any new issues he wished to raise in respect of his original application for review of the Tribunal’s decision, he indicated he had no new submissions.
The applicant’s submissions to the Court at this hearing indicate he has no understanding of or belief in his own judicial review application. His comments were limited to the issue of a merits review of the applicant’s evidence in respect of his adherence to Falun Gong and that he disagreed with the decision of both the delegate and the Tribunal in respect of his visa application. In preparation for the current hearing,
I again read the Tribunal decision. That decision is relatively short because of the absence of any substantial volume of material tendered by the applicant in his original application and his failure to respond to the invitation to provide additional material or attend the Tribunal hearing. The Tribunal member was unable to satisfy herself that there was sufficient evidence that the applicant had suffered persecution in the past owing to his practice of Falun Gong or for any other Convention ground. Nor was the member satisfied that the applicant would face a real chance of persecution within the meaning of the Convention in the reasonably foreseeable future if he were to return to China.
Another issue to consider was why the applicant had re-invigorated these proceedings but has previously failed to prosecute the matter when the matter was listed for hearing. The most recent absence was explained as being due to the applicant’s stomach ailment. This explanation however does not explain the applicant’s previous absences. When the applicant was asked to explain the reason for his previous failures to attend Court, the details of his stomach complaint and the period of his convalescence due to the condition became inconsistent and lacked credibility. The motivation for the re-invigoration of these proceedings may have been to extend the applicant’s stay in the country. My attention has been drawn to the decision of Driver FM in NALE v Minister for Immigration & Multicultural & Indigenous Affairs where this issue was canvassed and reference was made to the decision of Kosi v Minister for Immigration & Multicultural & Indigenous Affairs at [18] where Driver FM states:
“It would be an abuse of the Court’s process to file an application for review simply for the purpose of extending the period of one’s stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances, there is potential for the Court’s process to be abused by an applicant whose only purpose is to take advantage of that delay.”
Conclusion
In the circumstances, I dismiss the applicant’s Notice of Motion.
On the question of costs, Mr Bird seeks an order for costs fixed in the sum of $300. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $300.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 September 2005
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