SZFLH v Minister for Immigration
[2005] FMCA 1187
•22 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFLH v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1187 |
| MIGRATION – Application for reinstatement of a judicial review application dismissal on account of non appearance by the applicant – no serious issue to be tried. |
| Migration Act 1958 (Cth), s.425 |
| Applicant: | SZFLH |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG72 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 22 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr B Cramer Blake Dawson Waldron |
THE COURT ORDERS THAT:
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The Court directs that the Refugee Review Tribunal be joined as the second respondent to the proceedings.
The reinstatement application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG72 of 2005
| SZFLH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 14 June 2005 seeking the reinstatement of a judicial review application made on 11 January 2005. The reinstatement application seeks to have set aside orders made by me on 23 May 2005. Relevantly, I ordered on that day that the judicial review application be dismissed with costs on account of the applicant's non appearance at a directions hearing.
The reinstatement application is supported by an affidavit made on 10 June 2005. I note that the affidavit was witnessed by Orchid Sit, a former migration agent. In the affidavit, the applicant says that he received a letter asking him to pay the $345 setting down fee and that he attended court on 23 May 2005 to pay the fee. Annexed to the affidavit is a receipt for the payment of the fee, apparently issued on 23 May 2005. The applicant says in his affidavit that he was not told that he should attend the hearing on 23 May 2005 and that if he had known of the hearing he would have attended as he was at court anyway. Further, the applicant says that if he did not want to attend the hearing he would not have paid the setting down fee.
The applicant was cross-examined on his affidavit. He acknowledged receiving a series of letters about the legal proceedings. These were a letter dated 7 June 2005 from the Minister's solicitors (exhibit R1), a letter dated 24 May 2005 from the Minister's solicitors (exhibit R2), a letter dated 22 February 2005 from the Minister's solicitors (exhibit R3) and a letter dated 29 April 2005 from the Minister's solicitors (exhibit R4). Exhibit R4 informed the applicant of the directions hearing on Monday, 23 May 2005 at 10.15am. The applicant also acknowledged receiving a letter from the Court dated 16 May 2005 requiring the payment of the setting down fee of $345. The applicant gave evidence that, as he cannot read English, it was his practice to have the letters he received explained to him by someone else. In the case of exhibits R4 and C1, it appears that the letters were explained to the applicant by the 16 year old son of a neighbour. As best as the applicant can now recall, his understanding from these letters was that he was to attend court at 10.15am on 23 May 2005 to pay the setting down fee.
The applicant was also asked about his application and the directions made by the Court on 24 January 2005. He acknowledged his original judicial review application filed on 11 January 2005 and a purported amended application filed on 13 April 2005. The applicant acknowledged attending the directions hearing before Registrar McIllhatton on 24 January 2005 with the assistance of a Mandarin interpreter. He acknowledged receiving a copy of the orders made written in the Mandarin language. He understood from order 3 made by Registrar McIllhatton that he was obliged to serve an amended application by 18 April 2005. He intended that the purported amended application filed on 13 April 2005 should augment rather than replace his original application. That must be so as the purported amended application does no more than introduce a Department of Foreign Affairs and Trade country profile for China.
The applicant also understood from order 2 made by Registrar McIllhatton that he was to file and serve any additional evidence he wished to rely upon, including a transcript of the Refugee Review Tribunal (“the RRT”) hearing by 18 April 2005. The applicant acknowledged that nothing else had been filed and he regarded his application as complete and ready for hearing.
Based upon the applicant's evidence, it is plausible that he may have misunderstood the letter forming exhibit R4 from the Minister's solicitors. He seems to have juxtaposed the obligation to attend court at 10.15am on that day with the separate obligation advised by the Court to pay the setting down fee. I doubt that that is a sufficient explanation for the applicant's non attendance at court on 23 May 2005. The Court proceedings were an important matter for the applicant and it was his responsibility to ensure that he understood correspondence sent to him. He appears to be an intelligent man and he should have taken greater care of his own interests. He has received assistance from others in order to prepare documents in the English language for the Court proceedings. While I accept that it would have been burdensome for him he could have done more in order to understand the letter sent by the Minister's solicitors on 29 April 2005.
Even if I were persuaded that the applicant has advanced sufficient explanation for his non attendance there would be no utility in reinstating the judicial review application. That is because the application does not raise a serious question to be tried. As I have already noted, the amended application does no more than introduce some country information. The original application raises three grounds. The first ground asserts procedural irregularity at the hearing held by the RRT on 2 December 2004. This appears to be related to the third ground which is an asserted breach of the rules of natural justice. The applicant asserts that he was not given enough time to respond to questions put to him at the hearing. I take these grounds to be asserted breaches of the fair hearing rule under the general law and a breach of s.425 of the Migration Act 1958 (Cth). Neither ground can be sustained in the absence of evidence. The orders made by Registrar McIllhatton gave the applicant a sufficient opportunity to introduce evidence in support of those alleged breaches. The applicant has presented nothing to sustain the alleged jurisdictional errors and confirmed that he had nothing further to put to the Court. In the absence of evidence these grounds must fail.
The second ground in the original application is a general allegation of jurisdictional error in relation to a finding made by the RRT on page 62 of the court book that the applicant was not harmed or harassed in China in the 14 or 15 months preceding his departure for Australia. When I explored with the applicant his concerns about the RRT decision it was apparent that he disputes the outcome. His contest, however, is with the merits of the decision rather than the legality of it. The presiding member found that on the applicant's evidence presented to the RRT a well founded fear of persecution could not be established. In my view, the applicant cannot establish any jurisdictional error in the decision of the RRT.
I will therefore dismiss the reinstatement application.
The Minister seeks costs of that application fixed in the sum of $1,000. I agree that costs should follow the event and that $1,000 would have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister's costs of the application filed on 14 June 2005, fixed in the sum of $1,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 August 2005
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