SZEOB v Minister for Immigration - [2007] FMCA 1699

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEOB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1699

MIGRATION – RRT decision – Fijian of Indian ethnicity – arrived after May 2000 coup – 2003 decision of Tribunal – judicial review application dismissed for non‑attendance at 2005 hearing – 2007 application for reinstatement – no satisfactory explanation for delay – no arguable merits in substantive application – application refused.

Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c)

Applicant:

SZEOB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3051 of 2004

Judgment of:

Smith FM

Hearing date:

2 October 2007

Delivered at:

Sydney

Delivered on:

2 October 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms D Watson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 17 September 2007 to set aside orders made on 18 July 2005 is refused.
The applicant must pay the first respondent’s costs in the amount of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3051 of 2004

SZEOB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in 2001, and applied for a protection visa shortly after his arrival, on the basis that he feared persecution if he returned to his country of nationality, Fiji. He was assisted by a solicitor, and was similarly assisted in an appeal to the Tribunal against a decision of the delegate refusing the visa application, which was made on 30 April 2002.
The Tribunal heard evidence from the applicant and received lengthy submissions. On 3 July 2003 it handed down a decision, affirming the delegate’s decision.
The applicant applied for review of that decision in an application to this Court filed on 12 October 2004. No point now arises from his delay in bringing that application, which was listed at a first court date before me on 26 October 2004. The applicant was there represented by counsel instructed on a direct client basis, who signed short minutes of orders requiring the applicant to file an amended application and written submissions leading to a hearing appointed for 18 July 2005.
However, no documents were ever filed by the applicant. On 7 February 2005 the Court received a facsimile from the barrister, Mr Kumar, stating that he did not have instructions:
… and am not aware if the Applicant has appointed another lawyer to act for him and whether he relies on the document originally filed by him.
I have written to the client seeking instructions but I have not been contacted.
I consider my instruction as counsel in the above matter to be withdrawn.
There was no appearance by or on behalf of the applicant at the appointed hearing, and I dismissed it under Federal Magistrates Court Rule 13.03A(c) on the ground of his unexplained absence. I also ordered the applicant to pay costs in the amount of $4000.
The applicant filed an application to set aside that 2005 order on 17 September 2007, while held in immigration detention. In an affidavit in support he claims that he had relied on his solicitor “to follow up on my application. I was informed after I was detained that my application was dismissed/withdrawn and no further reviews were made”. His affidavit refers to humanitarian applications made to the Minister following his marriage in Australia, but does not give any detailed explanation of the delay in applying to the Court.
Under cross‑examination, the applicant gave evidence which was not consistent with his affidavit. He agreed that he had received a letter from the Minister’s solicitors shortly before the hearing, enclosing the respondent’s outline of submissions and clearly confirming the date of the hearing on 18 July 2005. The applicant admitted that he was aware of the hearing at that time. At one point in his evidence he claimed that he did not attend the hearing because he was sick, but he did not communicate this at the time, and has presented no evidence in support of this claim.
The applicant also admitted receiving a letter posted to him by the Minister’s solicitors on 2 August 2005, which attached the orders I made on 18 July 2005 and demanded payment of the amount of costs. The applicant admitted then attending the office of the solicitors to discuss their demand for the costs. Although at times the applicant’s evidence remained equivocal as to when he was aware that his case had been dismissed, I find that he was clearly aware of this during August 2005.
The applicant did not give any evidence showing any attempts to obtain advice as to his situation prior to his being taken into immigration detention on 8 June 2007. He said that he there received advice that he could apply to the Court to set aside its earlier order. He admitted that he had been aware that he was remaining in Australia without permission after August 2005.
I do not consider that he has given a satisfactory explanation for the very substantial delay in seeking to reinstate his judicial review application, and for that reason alone I would not have acceded to the present application.
I have, however, also considered the merits of the original application to the Court. This contained, as the grounds of the application, 66 paragraphs of contentions, many of a factual nature or only taking issue with the merits of the Tribunal’s decision. To the extent that it contends jurisdictional error, I do not consider that it has any arguable merit.
The applicant had claimed to fear persecution in Fiji, as a result of an experience during the May 2000 coup when his parents’ house was attacked by masked men and they were assaulted and robbed. He also complained generally of discrimination in Fiji against persons of Indian ethnicity such as himself, and claimed that he had received some threatening mail and phone calls at his workplace during the period before he came to Australia.
His claims were all, in my opinion, carefully identified by the Tribunal in its statement of reasons, and were assessed against country information concerning law enforcement in Fiji at the time of the Tribunal’s decision. The Tribunal was satisfied that the chance of the applicant facing harm similar to that which had occurred in 2000 in the reasonably foreseeable future was “remote”. It was not satisfied that he had ever in the past or would in the future suffer discrimination in any relevant field of his life amounting to persecution for the purposes of the Refugees Convention. It was also of the view that adequate State protection was available to him in Fiji against any serious harms which he might fear.
I have considered the Tribunal’s reasoning in the light of all the evidence that was before the Tribunal in 2003, and which was reproduced in a Court Book. I have considered the contentions made in the application originally filed by the applicant, and the careful analysis of those grounds made in the written submission filed in 2005 by the counsel for the Minister, Mr Kennett, which is on the file. I accept those submissions.
I do not consider that the applicant has identified, and I am unable to identify for myself any ground of jurisdictional error which has any reasonable prospects of success were I to reinstate the application. Indeed, I consider that reinstatement would be futile, since it could not achieve the further consideration of the applicant’s refugee claims which he desires. For that reason also I would refuse the application to reinstate the matter.
It is apparent that the applicant and his family may have compassionate reasons for his remaining in Australia, where he has married an Australian citizen. However, his ability to remain in Australia for these reasons is not a matter which this Court can address in the context of the present proceeding.
For the above reasons, I refuse the application which is before me today.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 11 October 2007