SZFMJ v Minister for Immigration and Anor (No.2)

[2006] FMCA 1769

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFMJ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2006] FMCA 1769

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – applicant’s application for reinstatement pursuant to r.16.05 of Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, r.16.05

Applicant: SZFMJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG112 of 2005

Judgment of: Emmett FM

Hearing date: 17 November 2006

Date of last submission: 17 November 2006

Delivered at: Sydney

Delivered on: 17 November 2006

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent: Mr I. Muthalib, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG112 of 2005

SZFMJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By way of motion filed on 2 November 2006, the applicant seeks an order that her proceeding before this Court, commenced by way of application filed on 14 January 2005, be reinstated pursuant to r.16.05 of the Federal Magistrates Court Rules 2001. 

2. In support of that application, the applicant provided an affidavit in the following terms:

   “1. On 12 October 2006, I did not appear at the Federal Magistrates Court for the Hearing.

   2. On 11 October 2006, the day before the hearing, I went to the (sic) Canberra to participate in a Falun Gong protest in front of the Chinese Embassy. I caught a cold on my way back.

   3. I asked my friend to attend the court for me and tell the court that I was sick. My friend went to the wrong place. She went to the court near Hyde Park.

   4. I wish to be given a further hearing opportunity so that I can properly present my case.”

3. In cross‑examination, the applicant stated that it was not only because she caught a cold on the way back from her protest in Canberra that was a reason for her failing to attend on 12 October, but that she fell over and injured her leg and was unable to walk properly.  She also stated in cross‑examination that she did not see a doctor, that she did not have time to write a letter, and for those reasons, she asked a friend to attend Court on her behalf on 12 October 2006 to inform the Court about these matters. 

4. I do not accept that explanation as satisfactory to explain the applicant's failure to appear on that day.  I regard the fact that there was no mention in her affidavit of any injury to her leg, which she stated today was the main reason she was unable to attend.  If it was an injury that was not sufficient to require the attendance of a doctor, it is not an injury, in my view, that was sufficient to prevent her attending Court in relation to her application. 

5. Even if I was persuaded by the applicant that her explanation was satisfactory, I further have regard to the utility of making the order sought in circumstances where the applicant had failed to attend a hearing before the Refugee Review Tribunal (“the Tribunal”).  I note, in particular, the Tribunal's comments in its reasons of the several opportunities provided to the applicant to appear before it, and the fact that, by declining the invitation to attend a hearing, ultimately the Tribunal was not given an opportunity to question the applicant or seek clarification about concerns it had or queries that were raised by her claims.  The Tribunal concluded that, in the absence of any further evidence or information, it was unable to be satisfied that the applicant was indeed a practitioner of Falun Gong or that she was persecuted by reason of her association with the Falun Gong movement in China. 

6. I note the Tribunal records, in its decision, the various attempts that it made at communication with the applicant to invite her to attend the hearing and the rescheduling that took place at the request of the applicant.  I note, in particular, that the Tribunal noted that it attempted to contact the applicant by telephone on the day of the hearing when she failed, again, to appear. 

7. I note that the correspondence for the applicant is sent to the address identified by the applicant as the only address provided by her in her application to the Tribunal for review. 

8. There is nothing on the face of the decision of the Tribunal that would indicate that the applicant would have any reasonable prospects of success in establishing jurisdictional error on the part of the Tribunal, either in its review process or its decision. 

9. That consideration, coupled with the unsatisfactory explanation offered by the applicant this morning, is sufficient to cause me to refuse the applicant's motion. 

10. Accordingly, the motion for reinstatement filed on 2 November 2006 is dismissed.

11. The first respondent seeks costs fixed in the sum of $250.  The sum sought is entirely reasonable and I order that the applicant pay the costs of the first respondent's in the amount of $250. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  27 November 2006