SZGPX v Minister for Immigration - [2006] FMCA 748

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGPX v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 748

MIGRATION – Review of decision by Refugee Review Tribunal – applicant alleges signature on notice of discontinuance forged.

Applicant:

SZGPX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1705 of 2005

Judgment of:

Emmett FM

Hearing date:

22 March 2006

Date of last submission:

22 March 2006

Delivered at:

Sydney

Delivered on:

22 March 2006

REPRESENTATION

Applicant in person

Solicitors for the Respondent:

Mr Z. Chami, Clayton Utz Layers

ORDERS

The Applicant’s Notice of Motion is dismissed.
That the Applicant pay the First Respondent's costs in the amount of $1,000 and that this cost order is in addition to the cost order made by this court on 12 December 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1705 of 2005

SZGPX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks orders in accordance with a notice of motion filed by him on 3 February 2006 that seeks the following 3 orders:
“1. The Application filed on 30 June 2005 by the applicant in this matter be reinstated.
2. Orders made on 12 December 2005 by Emmett FM be vacated.
3. The applicant be allowed to argue the entire matter in a full court.”
The applicant's motion was accompanied by an affidavit of the applicant filed on the 3 February 2006 in which he deposed to the following 2 matters:
“1. I did not sign and file the purported “Notice of Discontinuance” on 16 November 2005. I only found out about this notice of discontinuance when I came for scheduled hearing 2 February 2005. I never received any letter from the respondent or the court registry.
2. The signature on the purported “Notice of Discontinuance” is not mine although it looks like my signature. I believe someone else did this to harm me. Moreover, the Orders on 12 December 2005 were made in my absence and I never had a chance to contest the cost order. I believe that that order should be vacated and the application filed on 30 June 05 be reinstate (sic)”
The applicant complains that he did not receive the first respondent's motion seeking costs arising out of the filing by him of his notice of discontinuance, nor the orders made by this Court for the order that the applicant pay the first respondent's costs in the amount of $3000. If that be the fact, it arises entirely from the conduct of the applicant in failing to ensure that his contact details were correct.
The letter from the Court setting down the motion today was sent to the applicant at the address identified by him on his notice of motion as an address for service and I note that the residential address identified by him is the same as the address for service that is on the other documents filed by the applicant in this Court.
At the outset of the hearing this morning the applicant was asked by the Court if his residential address was that identified on his affidavit. The applicant responded the correct address was 6/36 Rochester Street, Botany 2638. He also sought to change the date in paragraph (1) of the affidavit filed 3 February 2006, from 2 February 2005 to 2 February 2006.
At the heart of the applicant's application is his claim that the signature that appears on the notice of discontinuance filed in this Court on

17 November 2005 was not his signature.
The first respondent's solicitor cross-examined the applicant, in particular, offering the applicant an opportunity to explain any reason why anyone would seek to forge his signature. The applicant confirmed that whilst a different friend helped him prepare the application and affidavit, he did not suggest that either of those friends forged his signature. Indeed, in respect of one of the friends, Fazal, the applicant gave evidence that he asked Fazal whether or not he had signed the notice of discontinuance and faxed it to the Court. The applicant responded that he had asked Fazal and Fazal had said, no.
The applicant gave evidence that there were 5 or 6 friends who were aware of his application to the Court, none of whom he had fallen out with. His evidence was that he had never had a fight with any of those friends. In response to a question from the first respondent's solicitor; “Did he know of anyone who would file a notice of discontinuance and forge his signature?”, the applicant answered that he could not think of anyone. I asked the applicant, was there any explanation he had as to why anyone would forge his signature. The applicant responded that he had no idea that he had not fought with anyone and that he did not know why anyone would do such a thing.
It is for the applicant to satisfy this Court that on the balance of probabilities he did not sign the notice of discontinuance nor file it with the Court.
I note that the applicant's signature is not a simple, straightforward signature and it appears to be substantially the same as the signatures on his application filed in this Court on 30 June 2005, his amended application filed in this Court on 4 October 2005, his notice of motion filed in this Court on 3 February 2006 and his affidavit, sworn on

3 February 2006, all of which were signed by the applicant.
The first respondent submits that the Court should draw the inference that the signature on the notice of discontinuance is in fact the applicant's signature in the circumstances where the applicant proffers no explanation as to how the notice of discontinuance came to be signed and filed, knows of no person who would forge his signature and has had no fights with any of the 5 or 6 friends who he has identified as those who knew of his application. The applicant was not an impressive witness and did not appear to be endeavouring to be frank and fulsome in his answers, despite being given every opportunity.
There is no rational explanation as to why someone would take it upon themselves to file a notice of discontinuance and forge the applicant's signature and the overwhelming inference is that the applicant signed the notice of discontinuance himself and that it was faxed to the Court’s registry by him at his instruction.
Accordingly, I am not satisfied, on the balance of probabilities, that the notice of discontinuance was not filed by the applicant, or at his request, and that the signature was not in fact his.
Further, I have had regard to the applicant's amended application filed in this Court on 4 October 2005. The only ground with any detail would appear to be seeking merits review, that being the first paragraph of particulars. The other claims appear to be general claims, unparticularised and which do not, on their face, disclose a jurisdictional error with reasonable prospects of success. The grounds would need to have, on their face, far more detail and particulars in order to disclose a ground with reasonable prospects of success. They are otherwise bare assertions of errors.
However, in light of my rejection of the applicant's evidence that he did not sign, file nor give instructions to file the notice of discontinuance filed on 17 November 2005, I am of the view that it is not necessary to consider in greater detail the applicant's claims as identified in the amended application, beyond the consideration I have referred to above.
In the circumstances, the applicant's notice of motion is dismissed.

RECORDED : NOT TRANSCRIBED

I should perhaps add to my judgment the procedural history of the correspondence with the applicant both by the first respondent as revealed in the affidavit of Ziad (Zac) Chami sworn on 22 March 2006, and the affidavit of Sharon Anne Burnett sworn 12 December 2005. I note that the applicant claimed he never received any of that correspondence and that he appeared at Court on the 2 February 2006, the date nominated for the hearing of this matter, pursuant to orders made on 26 July 2005, and it was then he became aware of the notice of discontinuance and a costs order made by this Court on

12 December 2005.
However, the correspondence from the Court and from the first respondent is directed to the address for service identified by the applicant on both his application filed on 30 June 2005 and his amended application on 4 October 2005. I note it is also the address provided by him on his notice of motion filed on 3 February 2006 and his affidavit sworn on 3 February 2006. It is a matter totally within the control and responsibility of the applicant to ensure that his contact details are correct. Those details were corrected this morning for the first time only in answer to a direct question by me as to his address.
Otherwise, the first respondent seeks costs fixed in the amount of $1000 in respect of today's motion. I note that such sum is less than the schedule one of the costs provided for in the Federal Magistrates Court Rules 2001and I am satisfied that the amount sought is reasonable.

ORDERS

That costs order is in addition to the costs order made by this Court, by me in fact, on the 12 December 2005 that the applicant pay the respondent's costs in a fixed amount of $3000.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: A.D’Addona

Date: 24 May 2006