SZESC v Minister for Immigration
[2006] FMCA 350
•13 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZESC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 350 |
| MIGRATION – Applicant failed to appear – application dismissed – applicant sought dismissal order be set aside – adequacy of explanation – reasonable prospects of success of original application. |
| Migration Act 1958 (Cth), ss.424A; 424A(1); 424A(3)(a) |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 |
| Applicant: | SZESC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3358 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 February 2006 |
| Date of Last Submission: | 13 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms S. Mason |
| Solicitors for the Respondent: | Ms A. Alex, Phillips Fox Lawyers |
ORDERS
That the Applicant be granted leave to add as a second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as a Second Respondent.
That the Applicant’s application is refused.
That Applicant pay the First Respondent's costs in an amount of $1200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3358 of 2004
| SZESC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
1.The applicant seeks orders setting aside the decision of this Court, made on 1 December 2005, to dismiss his proceeding on the basis of his failure to appear, pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules.
2.The applicant filed a notice of motion in this Court on 7 December 2005.
3.The applicant reads his affidavit, sworn 7 December 2005, in support of his motion.
4.The affidavit is in the following terms:
“1. I am the applicant in this matter. The matter was listed for hearing on 1 December 2005. I could not attend the hearing due to unavailability of transportation.
2. I live in Griffith. It is at least 7 hours drive from Sydney. I do not have money to purchase an air ticket. So I had to depend on the availability of a car. I did not have one”.
5.The applicant was unrepresented before this Court this morning, although he had the assistance of an interpreter. The applicant made no further submissions, nor did he provide any further evidence in support of his application, save to say that he did not have any permission to work in Australia and therefore did not have the money to come here. The applicant did not suggest that he was not aware of the hearing in this Court on 1 December 2005.
6.On 30 April 2002, the Refugee Review Tribunal affirmed the decision of decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”), not to grant the applicant a protection visa.
7.On 17 November 2004, the applicant filed an application in this Court, seeking judicial review of that decision.
8.On 29 November 2004, orders were made in the presence of the applicant, and with his consent, that, inter alia, he file an amended application, giving complete particulars of each ground of review, by 28 March 2005. On 26 April 2005, an amended application was filed (“Amended Application”). I note that the Amended Application was prepared by the Applicant's solicitor, Mr Chandra Jayawardena.
9.Pursuant to orders made on 29 November 2004, the matter was set down for hearing on 2 December 2005. On 27 September 2005, the applicant was notified by the Court that the matter would be heard on 1 December 2005, thereby bringing the hearing forward by one day.
10.On 28 November 2005, a notice of ceasing to act was filed by the Applicant's solicitor, Mr Chandra Jayawardena. I note that I have made comments in respect of that conduct, in the extempore reasons that I gave on 1 December 2005 for dismissing the matter. Those comments relate to the failure of Mr Jayawardena to file such a notice, without the consent of the Court, less than seven days before the hearing. However, that matter is incidental to the application before me today.
11.What is apparent from the history of this proceeding is that the applicant had been aware for more than a year that this matter was set down for hearing on 2 December 2005, and he had been aware, at least by the end of September 2005, that the matter was to be heard one day earlier.
12.The applicant would always have been aware of the necessity for him to have made arrangements to attend the hearing. In the circumstances I do not accept as reasonable the applicant's explanation of not having available transport or funds to attend the hearing.
13.In considering the applicant's motion this morning to set aside the order made on 1 December 2005 dismissing the Amended Application, I also have some regard to the prospects of any success of any of the grounds claimed by the applicant in his Amended Application. Those grounds are as follows:
Ground 1
“(1) The Tribunal made a serious Jurisdictional Error by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly:-
Particulars – Green Book
Page 103 – Para 01
“The Tribunal does not accept, an all the evidence, that the Applicant is at risk of persecution by the Indian Police or security authorities or anyone else for reasons of his religion or actual or imputed political opinion.
Applicant’s Comments:
The tribunal has made a grave error and misconception about the reasons adduced by the Applicant in his original Protection Visa application submitted to DIMIA and factually elaborated by him during his oral evidence given at the review hearing conducted by the tribunal. He did clearly say in his application and the oral evidence that he left India and came to Australia because he had been regularly subjected to arbitrary arrest and torture by the Indian Police because of his political profile as Sikh Students Federation Member. Therefore, the total failure on the part of the Tribunal to fully assess whole of the evidence provided by the applicant and how vulnerable the Applicant’s safety in the future would be amounted to a willful neglect of the Tribunal’s responsibility towards the Applicant as a quasi judicial reviewer, rather than satisfying itself on its own personal opinion. This was a serious jurisdictional error committed by the Tribunal.”
Ground 2
“(2) The tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:
Particulars- Green Book
Page 101 – Para 03
“The Tribunal also considers it most implausible that a Warrant of Arrest issued for the Applicant on 21 March 2002, the day he departed India for Australia, when the alleged offence or offences occurred in the early eighties and had visited an departed India many times before.”
Applicant’s Comments
The Tribunal had questioned the credibility of the applicant by refusing to accept the authenticity of the arrest warrant issued by the Magistrate’s Court of the area without cross checking its veracity. Holding that against the Applicant as a flawed document which was not acceptable to the Tribunal and expecting the applicant to submit better evidence was highly unreasonable by the Tribunal and amounts to a jurisdictional error.”
Ground 3
“3. The Tribunal was ‘procedurally unfair’ and failed to comply with sec. 424A of the Migration Act, making a serious jurisdictional error by concluding:
Particulars- Green Book
Page 101 – Para 03
“On the country information above that the Punjab returned some years ago to stability and law and order, the Tribunal considers it most plausible that the Police would be actively seeking the Applicant twenty years after he was approached to be a Police informer.”
Applicant’s Comments –
The Applicant submit that it was contrary to law that the Tribunal used independent source of information (country information) to support its finding without providing to the Applicant in advance the opportunity to make a counter argument against such information, before the Tribunal handed down its decision to refuse the Applicant’s claims. This type of one sided findings by the Tribunal against the law amounts to a serious jurisdictional error committed by the Tribunal”
Ground 4
“(4) The tribunal made further Jurisdictional Error by breaching
s 430(1)(c) & s.430(1)(d) of The Migration Act 1958 in relation to its conclusions:
Particulars – Green Book
Page 101 – Para 01
“The Tribunal considered the applicant showed no confidence in the truth of his testimony before the Tribunal. Many aspects of what should have been a straightforward, cohesive and credible are highly implausible and unconvincing.”
Applicant’s Comments
This finding by the Tribunal is not based on any material questions of fact or any other material on which the finding of fact are based. What the Tribunal has said was a general opinion about its own thinking with no supporting evidence to justify the finding. This shows that the Tribunal had acted in taking into account irrelevant matters to dismiss the Applicant’s application for review, which amounts to a jurisdictional error committed by the Tribunal in reaching its decision”.
Ground 5
“5. The Tribunal was Manifestly Unreasonable in concluding to the effect:-
Particulars
Page 102 – Para 02
“The Tribunal cannot accept on the country information that the Applicant would be of any interest to Sikh militants because the Applicant would not join their organisation in the early eighties. The tribunal finds that the Applicant manufactured his evidence as he was asked questions by the Tribunal.”
Applicant’s Comments
There is no doubt that Tribunal had gone to an extent to eliminate the Applicant’s claims completely by taking a firm view that the Applicant had definitely manufactured evidence to bring forth some false claims artistically. The Tribunal’s assessment that that the Applicant does not have any risk without any cogent evidence to justify that conclusion is a serious bias by the Tribunal and therefore manifestly unreasonable towards the Applicant. Hence it too is a jurisdictional error committed by the Applicant”
14.On the face of it, Grounds 1 and 2 would appear to be a challenge to the merits of the Tribunal's decision, an exercise that plainly, this Court has no jurisdiction to conduct.
15.Ground 3 asserts a failure by the Tribunal to comply with s.424A of the Migration Act 1958 (Cth) (“the Act”). The applicant appears to be claiming that the Tribunal was required to give the applicant the independent country information, to which it had regard, prior to the hearing. Authorities have made it clear that, pursuant to s.424A(3)(a), independent country information is excluded from the obligations of s.424A(1), and it is a matter for the Tribunal in relation to the weight that it attaches to that material and the use that it makes of it. Further, the Tribunal is not bound by the rules of evidence in conducting its review and may obtain information it considers relevant. NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”); QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]; SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 at [16].
16.Ground 4 purports to attack the credit findings of the Tribunal. Such findings are findings of fact. The assessment of an applicant’s credibility is a matter for the Tribunal.
17.Ground 5 appears, again, to attack the use made by the Tribunal of the independent country information. Again, for the reasons referred to above at paragraph [15], that is a matter wholly for the Tribunal.
18.Counsel for the First Respondent submits that there is no other jurisdictional error apparent on the face of the Tribunal's decision. It appears to me that the grounds contained in the Amended Application do not disclose any error capable of being a jurisdictional error that has reasonable prospects of success.
19.In considering the applicant's conduct in respect of these proceedings, I also have regard to the Notice of Objection to Competency, filed by the first respondent on 22 November 2005, and the two-and-a-half-year delay of the applicant seeking review of the Tribunal decision. Because I have made no final determination in respect of the applicant's Amended Application, I do not have further regard to the Notice of Objection to Competency, other than to observe that the applicant has been far from diligent in the conduct of these proceedings.
20.In the circumstances, I do not accept as reasonable the applicant’s explanation, for his failure to appear before this Court at the hearing on 1 December 2005.
21.In addition to the applicant’s failure to provide a proper explanation for his failure to appear before this Court on 1 December 2005, I have regard to the fact that the Amended Application does not disclose any reviewable error with reasonable prospects of success.
22.Accordingly, the Applicant’s application filed 7 December 2005 is refused.
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:S Kwong
Date:13 March 2006
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