SZFLI v Minister for Immigration
[2006] FMCA 1079
•24 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFLI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1079 |
| MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – failure of applicant to appear at Refugee Review Tribunal hearing – failure of applicant to appear at hearing before this Court – applicant’s application has no reasonable prospects of success – application dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules 2001. |
| Federal Magistrates Court Rules 2001, rr.13.03A(c); 16.05; sch.1 Migration Act 1958 (Cth), ss.36; 65 |
| Applicant: | SZFLI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG73 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 24 July 2006 |
| Date of last submission: | 24 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2006 |
REPRESENTATION
| No appearance by the Applicant |
| Solicitors for the Respondent: | Ms K. McNamara, Phillips Fox Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG73 of 2005
| SZFLI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an interlocutory order that the application be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 on the basis that the applicant failed to appear.
The first respondent filed an outline of written submissions together with an affidavit of Kate Elizabeth McNamara affirmed 17 July 2006.
On 11 January 2005, the applicant filed an application in this Court seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 November 2004. On 17 June 2005, the applicant filed an amended application. The amended application contains generalised claims in respect of the Tribunal decision that are unparticularised.
The applicant did not attend the hearing of the Tribunal, although the applicant was sent a letter inviting him to attend a hearing. The amended application purports to provide an explanation as to why the applicant did not attend. That explanation is in the following terms:
“However, due to incident/accident, I was unreachable by the telephone as I losed (sic) my mobile.”
There are no other details provided by the applicant by way of evidence and, in any event, it is likely that such evidence would be irrelevant to the judicial review by this Court of the Tribunal's decision.
I note that it would appear on the face of the Tribunal's decision that it complied with the statutory requirements that would entitle it to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it and that the Tribunal concluded that:
“Without further details, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing, the Tribunal cannot be satisfied that the applicant was a “Chubb driver” for China Farming Bank, nor can the Tribunal be satisfied that he had witnessed any corrupt behaviour. It follows that the Tribunal is not satisfied that the applicant had reported any corrupt conduct to the company's board or his friend who was working for the “Human Rights of China”, or that the applicant was dismissed. For the same reasons, the Tribunal is not satisfied that the Chinese authorities keep visiting the applicant's family in China. In essence, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.”
On the evidence before it, the Tribunal was not satisfied that the applicant had suffered convention related harm or that there was a real chance of such harm occurring to the applicant in the reasonably foreseeable future. In those circumstances, by operation of ss.36 and 65 of the Migration Act 1958 (Cth) (“the Act”) the Tribunal was bound to affirm the decision of the delegate in that it was not satisfied that the applicant satisfied the criteria for refugee status.
Whilst I make no concluded finding in respect of the applicant's amended application, on the face of the decision, it would appear that the applicant's amended application has no reasonable prospects of success.
Accordingly, in circumstances where the applicant has failed to appear at today's hearing where I am satisfied that the applicant was aware of the hearing, the application before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in an amount of $2800. I note that the first respondent incurred the expense of the preparation of the green book and filed an outline of submissions in accordance with directions of the Court together with an affidavit in support of the first respondent's contentions and annexing further material omitted from the green book.
I note that the amount sought by the first respondent is less than the sum provided for in the Federal Magistrates Court Rules 2001 in sch.1 but I am satisfied that the costs sought are reasonable in the circumstances.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 28 July 2006
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