SZFNB v Minister for Immigration - [2005] FMCA 1440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFNB v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1440

MIGRATION – RRT decision – application for judicial review dismissed for non-appearance – application to set aside default order – refused.

Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), s.483A

Applicant:

SZFNB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 143 of 2005

Judgment of:

Smith FM

Hearing date:

5 September 2005

Delivered at:

Sydney

Delivered on:

5 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Crockett

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The applicant’s application under r.16.05(2)(a) to set aside orders made on 4 July 2005 is refused.
The applicant must pay the first respondent’s costs in the sum of $800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG143 of 2005

SZFNB

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 today an application by the applicant, in effect, to set aside orders made on 4 July 2005 in the absence of the applicant. The orders were made by me at a directions hearing appointed by the Court at the request of the solicitors for the Minister. The listing was requested in view of the non‑compliance by the applicant with directions made on 9 February 2005 for the filing and service of an amended application giving particulars of the application for review.
The applicant’s original application for review sought orders in relation to a decision of the Tribunal which affirmed a decision refusing an application for a protection visa. The application adopted a template which is a list of general allegations of grounds of judicial review, some of which may amount to jurisdictional errors, but which contained no particulars which showed any relevance to the particular decision of the Tribunal sought to be reviewed.
At the directions hearing on 4 July 2005, I was satisfied by an affidavit of Andrew John Crockett, sworn 1 July 2005, that the applicant had been duly served with notice of the listing by way of a letter addressed to the applicant which was dated and sent on 20 May 2005. The letter gave more than ample notice of the time and place of the listing.
The applicant did not attend on that day. I ordered that the substantive application be dismissed under r.13.03A(c) for absence from the hearing and made an order for him to pay an amount of costs. I also ordered the respondent to notify the applicant of the orders and of the provisions of r.16.05(2)(a), which permits the Court to set aside an order made in the absence of the applicant.
It is clear to me that the applicant subsequently received a letter from the Australian Government Solicitor notifying the applicant of the orders. This was similarly addressed to the applicant at his address for service. It seems to me that this must have occurred, since the applicant in fact did make such an application under r.16.05(2)(a) and did so on 8 August 2005. An affidavit in support filed on the same day says:
I am not represented by Solicitor. The Respondent did not serve the letter 20/05/05. I did not receive any letter from AGS dated 20/05/05.
I have difficulty knowing how the applicant could know of such a letter unless he had in fact received it. Even if he did not receive it prior to the directions hearing, he must have received the copy sent to him subsequently when notified of the Court’s order. However, the applicant under oath today denied receiving any letters from the Australian Government Solicitor, including four to which he was taken under cross‑examination, and including the letter notifying him of the Court’s order. He told me that the address given to the Court is his home address and that it has a letter box with the number of Botany Road shown on it. He did not claim to have any general problem with receiving mail.
In those circumstances, I am not persuaded to accept his evidence that he did not receive the letter notifying him of the directions hearing before it occurred. I think it more likely that he received it and decided not to come, in the hope that his matter would not be finally determined on that day. I am therefore not persuaded that the applicant has a good explanation for not attending on 4 July 2005.
However, notwithstanding that opinion, I might have been inclined to set aside the default order if I had been persuaded that there was any purpose in setting it aside. This required me to consider the merits of the applicant’s substantive application to the Court. This is an application for judicial review under s.483A of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 November 2004 and handed down on 22 December 2004.
I have carefully read that decision. It appears to me that the Tribunal properly identified the claims for refugee status which were before it. In short, they were that the applicant feared persecution from government authorities and members of the Awami League because he was a former member of the Freedom Party in Bangladesh. The applicant claimed that he had been beaten during a demonstration in 2001, and that he had been falsely charged and convicted in absentia of the murder of a member of the Awami League. He claimed that if he returned to Bangladesh he would be killed or arrested by government authorities or killed by members of the Awami League.
The applicant arrived in Australia in April 2001 and claimed a protection visa on 2 May 2001. The Tribunal’s reasoning was firmly based on its rejection of the applicant’s evidence upon a finding “that the applicant is not a credible or truthful witness on any matters of material facts”. The Tribunal identified substantial contradictions in the applicant’s evidence to it. It also found inconsistency with country information showing that the Freedom Party was now “almost defunct” and that the Awami League was not in power at the time that the applicant claimed it was.
The Tribunal’s reasons included the finding:
I do not accept that the applicant was detained during this period and I find that he has fabricated this evidence to support his claims for refugee status.
As I have indicated, the applicant’s application for judicial review of the Tribunal’s decision did not identify any ground for relief with arguable merit.
The only other document the applicant has presented to the Court in support of the merits of his application is an amended application filed on 25 May 2005. This also follows a template showing no thought as to how his general allegations of jurisdictional error might be applicable to the present decision of the Tribunal. There are allegations that the Tribunal asked itself the wrong question, denied the applicant natural justice, was biased, exceeded its jurisdiction, and decided the case without proper investigation. There are also allegations asserting claims to be a refugee. None of the allegations of jurisdictional error have particulars, and the applicant today has not been able to point to any arguable case for the relief he seeks.
Considering the matter on the material presented by the parties, I find that the present substantive application has no prospects of success and that it would be futile to allow the matter to proceed to a hearing. I am therefore not persuaded that I should exercise the Court’s discretion to set aside my previous default order, and I shall therefore refuse the present interlocutory application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 October 2005