SZHEW v Minister for Immigration & Anor (No.2)
[2006] FMCA 1750
•27 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHEW v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1750 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of Tribunal decision – where applicant did not attend court on hearing date. PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment after applicant failed to appear – motion for reinstatement of judicial review application – whether sufficient explanation advanced – where applicant changed address – where applicant claimed his migration agent notified the Court of his change of address for service – whether reinstatement futile. |
| Federal Magistrates Court Rules 2001 rr.13.03A(c), 16.05 |
| SZHEW v Minister for Immigration [2006] FMCA 1483 referred to. SZBRB v Minister for Immigration [2004] FMCA 285 followed. SZCPY v Minister for Immigration [2004] FMCA 646 followed. |
| Applicant: | SZHEW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2716 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 November 2006 |
| Date of Last Submission: | 24 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2006 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2716 of 2005
| SZHEW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application by means of a Notice of Motion to set aside an order made on 25th September 2006 dismissing an application for review of a decision of the Refugee Review Tribunal. The Applicant seeks that his application should be reinstated and a new hearing date scheduled.
Background
The Applicant originally filed an application for review of a decision of the Refugee Review Tribunal on 23rd September 2005. The application was first mentioned before Lloyd-Jones FM on 26th October 2005 and adjourned for further directions on 30th March 2006. On that date it was adjourned to 28th August 2006.
Arrangements were made to transfer the matter into my docket, and on 28th August 2006 Lloyd-Jones FM made orders transferring the matter to me and listing it for directions before me at 11:30am on
25th September 2006. The court records show that the Applicant did not appear when the matter was listed on 28th August but appeared later. Ms Jolley, solicitor, appeared for the Respondent Minister.
On 25th September 2006 the matter was listed before me at 11:30am. The court records show that it was called on at 11:37am but the Applicant did not appear. The matter was held in the list and called again at 12:06pm. Again, there was no appearance by or on behalf of the Applicant, so I dismissed the application for non-appearance under the provisions of Rule 13.03A(c) (see SZHEW v Minister for Immigration & Anor [2006] FMCA 1483).
Notice of Motion
The Applicant filed a Notice of Motion on 3rd November 2006 seeking to set aside the orders of 25th September 2006 made in his absence.
He has filed an affidavit in support, saying:
(1)On 25 September 2006 I did not appear at the Federal Magistrates Court for the Hearing.
(2)On 28 August 2006 I attend the court for a direction hearing and I was told that I would need to attend a new direction hearing in sometime around October 2006, and that the Court will send letter advising me the new direction hearing date.
(3)I change my address to Bankstown and I asked people living at my previous address to forward my letters to me. I only received a decision from the Court saying that my application was dismissed on 25 September 2006. I was not aware that there was a direction hearing on 25 September 2006, because the court told me earlier that it would be in October.
(4)I wish to be given a further hearing opportunity so that I can properly present my case.
I note that the Applicant’s address given on his Notice of Motion and affidavit differs from that on his earlier documents. I also note that the Applicant filed a Notice of Change of Address for Service in Court on 28th August 2006 showing an address for service at Bankstown NSW as his new address. The address on his Notice of Motion shows that he lives in another suburb of Sydney. The Court wrote to him on
12th September 2006 at the Bankstown address, advising him that the matter had been listed for directions before me at 11:30am on
25th September 2006. The letter goes on to say:
Please note that if you do not attend Court on Monday 25 September 2006 orders may be made in your absence.
The Court file shows that the court wrote to the Applicant at that Bankstown address on Thursday 5th October enclosing a copy of the judgment.
The application to set aside the decision was listed for hearing on Monday 20th November 2006. The Applicant appeared unrepresented. An interpreter in the Mandarin language was present. For reasons not clear to me, there was no appearance on behalf of the First Respondent. Through the interpreter, the Applicant said that he had plenty of things to say but wished to have an interpreter in the Fujian language, not Mandarin. As I intended to hear oral evidence from the Applicant, I agreed to adjourn the application and request the services of a Fujian interpreter. I adjourned the matter to Friday 24th November.
The Applicant attended Court on 24th November and gave evidence with the assistance of an interpreter in the Fujian dialect of Chinese.
He told the Court that he had not received any letter from the Court telling him that he had to attend court on 25th September. He was shown a copy of a letter to him dated 12th September 2006 advising him of the hearing date but he denied ever having received it.
The Applicant told the Court that he had changed his address from the address he had given in his Notice of Change of Address for Service that he had filed in Court on 28th August 2006. He said that he had notified the Court of this change of address, which is the address where he now resides. When asked how he had notified the Court of his change of address for service, the Applicant said that he had told his migration agent, who had informed the Court. When he was told that there was no record of his latest change of address on the court file, the Applicant said that his agent had told him he had notified the Court.
The Applicant stated in his affidavit that the Court had told him that his new date would be in October. When he was asked who at the Court had told him that the Applicant did not answer.
Principles to be applied
It is well established that, in considering an application for reinstatement, the Court must look not only at the circumstances which led to the party missing the hearing, but also at the merits of the substantive application. The principle was succinctly stated by Driver FM in SZCPY & Anor v Minister for Immigration [2004] FMCA 646 at [12]:
Where there are no prospects for success on a substantive application, reinstatement would be futile, therefore an application for reinstatement ought to be refused. This approach was taken by Federal Magistrate Raphael in SZBRB v Minister for Immigration [2004] FMCA 285 where he refused to reinstate proceedings where the facts indicated there was no possible utility in reinstating and therefore he held that it would not be in the interests of justice to reinstate the matter.
The Application for review of the Refugee Review Tribunal decision
Whilst the Applicant was in the witness box, I asked him about his substantive application. The application was shown his application for review of the Tribunal decision and confirmed that it was his signature on the application. He said that a friend had prepared his application. He confirmed that he was illiterate in his own language and said that he had had very little schooling when he was a child. His father had passed away when he was only one year old.
The Applicant said that when he attended the Tribunal hearing he did not know how to answer the Tribunal’s questions. I only understood some of the questions.
When asked why the Tribunal had made an error, the Applicant replied that he spoke no English at all and very little Mandarin. He was psychologically suffering at the time. He knew everything in his mind but he just did not know how to express himself.
The Applicant went on to say he was persecuted in China because he was a Falun Gong practitioner and, as a result, he is unable to go back. He said that his wife was back in his home town and she hid herself “here and there” to escape persecution.
The Applicant repeated that because of his poor schooling he was unable to express himself very well. He became distressed at this point but declined the offer of a short adjournment in order to regain his composure. He said that his migration agent, who presumably knew about his illiteracy, did not attend the hearing with him.
Conclusions
In the case before me, the Applicant had sought a Protection (Class XA) visa as he claimed a fear of persecution should he return to the People’s Republic of China because of his practice of Falun Gong.
He attended a hearing of the Refugee Review Tribunal on 27th July 2005 and gave oral evidence. The Tribunal affirmed the delegate’s decision not to grant a protection visa, finding that his level of knowledge of facts relating to Falun Gong was incommensurate with his claims that he was a Falun Gong practitioner. Because of this, the Tribunal rejected his claims that he was ever a Falun Gong practitioner or that he was involved in any Falun Gong activities.
The Applicant has not filed any amended application in respect of his substantive claim, although he has had the benefit of legal advice from a barrister. His application for review filed on 23rd September 2005 claims these two grounds of review:
1. The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the Tribunal filed to consider the fact that the applicant is illiterate, which may affect his ability to study Falun Gong, of which the applicant claims to be a follower.
2. Important evidence ignored by the Tribunal: the applicant submitted a photocopy showing him with a Falun Gong badge. This evidence was not accepted by the Tribunal merely because the facsimile date showing on the paper contradicts to the applicant’s claim that he received the copy two days before the hearing. The applicant claims that he received the facsimiled copy by post from China two days before the hearing.
Contrary to the Applicant’s claims, the Tribunal did consider the fact that he cannot read (at Court Book page 58) but was not persuaded by that explanation (at Court Book page 63). The Tribunal was entitled to make the finding that it did about the copy of the photograph on the basis of the evidence.
As to whether the Tribunal made an attempt to deal with the review in a bona fide manner, in so far as the application alleges a breach of good faith, I am unable to discern any evidence in support of that claim.
The Full Court of the Federal Court set out in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [42] – [48] the principles applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review (see also SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076).
An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.[1] In this case, I can find no evidence of a lack of a bona fide attempt to exercise the power of review by the Tribunal.
[1] [2002] FCAFC 361 at [43]-[44]
The Applicant’s grounds for review do no more than seek to challenge the Tribunal’s factual findings, but merits review is not available to an Applicant in an application for judicial review. There was evidence available to the Tribunal that would justify the Tribunal’s factual findings.
I am aware that the Applicant is not legally represented.
My independent examination of the material does not disclose any arguable case of jurisdictional error. In my view, the Applicant’s substantive application has no reasonable prospects of success.
Even if I were satisfied that the Applicant had given a reasonable explanation for his failure to appear, reinstatement would be futile because his application for review cannot succeed. I am not satisfied that the Applicant has given a reasonable explanation for his failure to appear. The Court wrote to him at his address for service that he had provided only about a fortnight earlier. The Applicant says that he told his migration agent who said he had advised the Court, but there is no evidence to corroborate that assertion. I am not satisfied that it is true.
In my view, the Applicant has not given a satisfactory explanation for his failure to attend Court. In any event, reinstatement would not achieve anything, as his substantive application has no reasonable prospect of success.
The application will be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 27 November 2006
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