SZHDA v Minister for Immigration
[2007] FMCA 275
•28 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 275 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister no to grant a protection visa – applicant is a citizen of the People’s Republic of China and claims fear of persecution for reasons of his religion – applicant failed to attend Refugee Review Tribunal hearing – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.425, 426A |
| SZBRB v Minister for Immigration [2004] FMCA 285 SZCPY & Anor v Minister for Immigration [2004] FMCA 646 SZIPN & Anor v Minister for Immigration & Anor (No.3) [2006] FMCA 1751 |
| Applicant: | SZHDA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2608 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 February 2007 |
| Date of last submission: | 28 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2007 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the first respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent's costs fixed in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2608 of 2005
| SZHDA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to set aside an order made by a Registrar of this Court dismissing an application for review of a decision of the Refugee Review Tribunal. The applicant claims that he did not attend the callover which took place at 3:15 pm on 10th February 2006 in the Federal Magistrates Court because he was not informed by the Court or the respondent that the date had been changed.
The background to this matter is that the applicant, who is a citizen of the People's Republic of China, arrived in Australia on 2nd March 2005. On the 15th of that month he applied for a protection (class XA) visa. That application was refused on 8th April 2005 and on 9th May in that year he applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the applicant on 20th July 2005 informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter invited the applicant to attend a hearing of the Tribunal to take place at 1 pm on Wednesday, 17th August 2005.
The applicant did not respond to that invitation, nor did he attend the hearing on 17th August. He did not submit any further documents to the Tribunal for the purpose of the hearing. The Tribunal exercised its power under s.426A of the Migration Act to deal with the application on the basis of the material before it without taking any further steps to enable the applicant to appear. The decision was signed on 18th August and handed down on 6th September 2005. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
On 16th September 2005 the applicant commenced proceedings in this Court seeking a review of the decision of the Refugee Review Tribunal. The application came before the Court on 13th October 2005. The Court record shows that on that date the applicant appeared in person before a Registrar of this Court accompanied by an interpreter in the Mandarin language. A solicitor employed by the Australian Government Solicitor appeared for the respondent Minister. The Court made orders by consent subject to a form of short minutes of order signed by the applicant and the solicitor for the Minister.
The application was adjourned to a further callover at 3:15 pm on
10th February 2006.
The applicant filed an amended application for review and an affidavit in support on 12th January 2006. That date was one day before the date given in paragraph 4 of the consent orders requiring the applicant to file and serve any amended application giving complete particulars of each ground of review relied upon by 13th January 2006. When the matter came before the Registrar on 10th February 2006 the applicant did not appear. The matter was listed at 3:15 pm and it appears that the Registrar held the matter in the list and noted that there was no appearance by or on behalf of the applicant at 4:15 pm. The Registrar then dismissed the matter on the basis of the non-appearance by the applicant at the hearing.
The applicant has filed an application seeking an order that the order made on 10th February 2006 by the learned Registrar should be set aside. The application is accompanied by an affidavit. The relevant parts of the affidavit are paragraphs 2, 3 and 4, which I will read onto the record:
(2) I did not attend the callover at 3:15 pm, 10th February 2006 in the Federal Magistrates Court because I was not informed by the Court or the respondent the callover date had been changed.
(3) The Court informed me that the callover date was
17th February 2006. I went to the Court that day. I did (not) find my matter was listed.
(4) I received a letter from respondent solicitor on about
19th February 2006. The letter advised me that the Court dismissed the matter.
The applicant has attended Court today in support of his application. Ms Nanson from the office of the Australian Government Solicitor has informed the Court that the application to set aside the decision is opposed. I offered the applicant the opportunity to give evidence on oath or affirmation which would involve his being cross-examined on his affidavit, amongst other things. I informed the applicant that if he chose not to give evidence on oath or affirmation, then the weight given to the matters in his affidavit may be less. After the applicant asked me to repeat that advice I gave the applicant a further explanation of what his options were.
He then told the Court that he chose not to give oral evidence. I asked the applicant at the Bar table some questions about his affidavit and he told the Court that he had received a call on his mobile phone about the fact that he said the date of the callover had been changed. I put to the applicant that nothing appeared on the Court file to show that the Court had ever informed the applicant that the callover date was
17th February rather than 10th February.
The Court in considering an application for reinstatement must look not only at the circumstances which led to the party missing the hearing, but also at the merits of the substantive application.
This principle has been stated by Driver FM in SZCPY & Anor v Minister for Immigration [2004] FMCA 646 at [12] where his Honour followed the decision of Raphael FM in SZRB v Minister for Immigration [2004] FMCA 285. In the latter case Raphael FM refused to reinstate proceedings where the facts indicated there was no possible utility in reinstating and held that it would not be in the interests of justice to reinstate the matter. I refer also to SZIPN & Anor v Minister for Immigration & Anor (No. 3) [2006] FMCA 1751 at [23].
I look, first of all, at the circumstances in which the applicant claimed that he missed the callover due to a change in date about which he was informed. There is no evidence on the Court file to show that the applicant was ever told by the Court or anyone connected to the Court that the date had been changed from 10th February to 17th February. The Court records show that the applicant entered into orders by consent where directions were made for filing an amended application and the matter was adjourned until 3:15 pm on 10th February 2006.
I note the applicant complied with the directions to file an amended application within the time prescribed in the consent orders.
The applicant has not produced any documentation indicating that someone, whether from the Court or from the solicitors for the respondent, had ever informed him that the matter was listed on
17th February. All the evidence points to 10th February.
I have taken the opportunity of reading the decision of the Refugee Review Tribunal which is the subject of review. I note that the Tribunal dealt with the matter under the provisions of s.426A of the Migration Act as the applicant did not attend the Tribunal hearing.
The amended application filed by the applicant on 12th January 2006 contains one ground of review, being a claim that the notice sent by the Tribunal to the applicant pursuant to the requirements of s.425 of the Migration Act inviting the applicant to a hearing was never received by the applicant. The applicant complains therefore that he was denied procedural fairness.
The fact that the applicant never received an invitation under s.425 does not establish jurisdictional error. The Court Book contains at pp.56 and 57 a copy of a letter sent by registered post to the applicant on 20th July 2005 at the address given in his application for review inviting him to attend a hearing at 1:00 pm on Wednesday, 17th August. The Court Book does not give any indication that that letter was returned unclaimed. The Tribunal decision showed that the Tribunal member considered the material before the Tribunal but found the evidence inadequate to satisfy the Tribunal that the applicant met the relevant criteria for grant of a protection visa. I note that not only did the applicant not attend the Tribunal hearing, but the applicant does not appear to have provided any further written information to the Tribunal.
In my view, the applicant has not made out any case to show that he missed the callover date on 10th February for any reason attributable to anyone other than himself. Even if I were satisfied that the applicant had made out a case for reinstatement on the basis of some circumstances that would provide a reason for his non-attendance – and I am not so satisfied – I am satisfied that reinstating the application would be futile as his substantive application for review of the Tribunal decision does not have any reasonable prospects of success.
Accordingly, I am satisfied that the application should not be granted. I propose to order that the title of the respondent be changed to Minister for Immigration & Citizenship, and the application is dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim and, in my view; this is a proper matter for a costs order in favour of the respondent. The amount sought, being $500.00, is well within the scale provided by the Federal Magistrates Court Rules. I propose to make that order.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 March 2007
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