SZHVJ v MIAC - [2009] FMCA 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVJ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 320

MIGRATION – Visa – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision – where applicant claimed to be a citizen of Taiwan – where applicant claimed that he was really a citizen of China.

PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment – where applicant had not attended Court on hearing date – where applicant attended Court on first court date.

Migration Act 1958 (Cth), ss. 48A, 91X, 412, 414, 424, 424C, 425, 476, 477
Federal Magistrates Court Rules 2001 rr.13.03A, 15.27, 16.05

SZHVJ v Minister for Immigration [2006] FMCA 1805 cited
SZBRB v Minister for Immigration [2004] FMCA 285 followed
SZCPY & Anor v Minister for Immigration [2004] FMCA 646 followed
SZIPN v Minister for Immigration [2006] FMCA 1751 followed
SZITC v Minister for Immigration [2007] FMCA 424 followed
SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 followed.
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; 81 ALJR 1401; [2007] HCA 35
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
SZMGX v Minister for Immigration & Anor [2008] FMCA 1529

Applicant:

SZHVJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3684 of 2005

Judgment of:

Scarlett FM

Hearing date:

8 April 2009

Date of Last Submission:

8 April 2009

Delivered at:

Sydney

Delivered on:

16 April 2009

REPRESENTATION

The Applicant:

Appeared in person

Solicitor for the Respondents:

Ms Hooper

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application filed on 3 April 2009 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $1,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3684 of 2005

SZHVJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The applicant, who is in immigration detention at Villawood, NSW, has applied to the Court for review of a decision of the Refugee Review Tribunal handed down on 15^th November 2005. Leaving aside the fact that his application appears to be several years out of time, as an application for a remedy to be granted under s.476 of the Migration Act must be made within 28 days of the actual notification of the decision (s.477(1)), the applicant has already made that application, which was dismissed for non-attendance.
What the applicant really wants to do is apply to set aside the judgment entered against him on 4^th December 2006 (SZHVJ v Minister for Immigration & Anor[1] under the provisions of rule 16.05. His affidavit in support does not set out any information directly relevant to this application, so he gave oral evidence with the assistance of an interpreter in the Mandarin language.
[1] [2006] FMCA 1805

Background

The applicant filed an application for review of the Tribunal decision and an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 320
Decision Date: 16 April 2009

CaseChat Overview and Summary

The case of SZHVJ v MIAC involved an application by the applicant to review a decision of the Refugee Review Tribunal. The applicant, SZHVJ, claimed to be a citizen of Taiwan and sought a Protection (Class XA) visa. The dispute centred on the applicant’s citizenship and his eligibility for the visa. The matter was heard in the Federal Circuit Court of Australia.

The court had to determine whether it should set aside its previous judgment due to the applicant’s non-attendance at the scheduled hearing. SZHVJ did not attend the hearing on the first listed date but did appear on the subsequent date. The applicant argued that his absence was due to misunderstandings regarding the court procedures. The legal issues involved the procedural fairness and the court’s discretion to set aside a judgment due to non-attendance.

The court found that the applicant’s absence from the hearing without sufficient explanation or notice did not justify setting aside the judgment. The court emphasised that procedural fairness was compromised by the applicant’s failure to attend on the hearing date. The court ruled that the application to set aside the judgment was dismissed and ordered the applicant to pay the respondent’s costs. This decision highlighted the importance of procedural adherence and the consequences of non-attendance in court proceedings.

Orders

Orders of the court

The application filed on 3 April 2009 is dismissed.

The applicant is to pay the first respondent’s costs fixed in the sum of $1,700.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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