SZHZP v Minister for Immigration

[2006] FMCA 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 132

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of judicial review application at the first court date on the basis that no arguable case is or could be advanced.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Applicant: SZHZP

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG3863 of 2005

Judgment of: Driver FM

Hearing date: 3 February 2006

Delivered at: Sydney

Delivered on: 3 February 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms K Rose
Phillips Fox

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.

2. The Court directs that the name of the applicant is not to appear on the transcript of today’s hearing.

3. The application is dismissed.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3863 of 2005

SZHZP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for judicial review filed on 30 December 2005.  The application relates to a decision of the Refugee Review Tribunal (“the RRT”) made on 4 November 2005.  The applicant asserts that he received notification of the decision on 5 December 2005.  On that basis I find that the application was filed within time.

2. The application is accompanied by an affidavit filed on 30 December 2005. That affidavit simply annexes the decision of the RRT. The application is opposed by the first respondent, the Minister. In her response the Minister asserts that no reasonable cause of action is disclosed by the application and that pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) the application should be dismissed without a final hearing. The Minister asserts that the application seeks merits review and only attempts to explain the non-attendance by the applicant at a RRT hearing to which he was invited.

3. On my reading of the judicial review application and the decision of the RRT, it appeared to me improbable that an arguable case could be demonstrated unless the applicant could produce facts or circumstances pointing to some procedural unfairness or some breach of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to the decision of the RRT to proceed in his absence. When the matter came before me today for the first court date on the application I ordered that there be an immediate show cause hearing pursuant to rule 44.11(a) of the Federal Magistrates Court Rules.

4. The applicant had not complied with the court rules inasmuch as his affidavit did not set out the facts and circumstances relevant to his application.  However, the first ground in his application contained sufficient detail to enable me to determine what enquiries I should make.  I gave the applicant the opportunity to give oral evidence and he accepted that opportunity.  The applicant told me that he had received from the RRT a hearing invitation.  He confirmed the accuracy of what is said about that hearing invitation on page 4 of the RRT decision.  He was uncertain when he received the hearing invitation but confirmed that he made no response to it.  He was somewhat uncertain in his evidence as to whether he had made up his mind whether or not to go to a hearing.  Ultimately, he said that he had decided to go but made no contact of any kind with the RRT between 29 September 2005 and

   
   

   4 November 2005.  Neither did he contact the RRT after 4 November 2005.  The applicant asserts that he was sick for about one week between 2 November 2005 and 9 November 2005.  He did not consult a doctor due to a lack of money.  He does not have any medical evidence in relation to his illness.  He did not put the RRT on notice of his illness.

5. In these circumstances, there can be no assertion of procedural unfairness on the part of the RRT. The RRT complied with its obligation to invite the applicant to a hearing. The RRT did not know of the applicant's illness and was entitled to proceed in his absence. There was no breach of any provision of the Migration Act.

6. The decision of the RRT is a very simple one.  The applicant had been put on notice that the RRT was unable to make a favourable decision on the basis of the information he had provided.  When he failed to attend the hearing it was almost inevitable that the RRT would have to conclude that it could not be satisfied that he qualified for a protection visa.  That was what occurred.  I cannot see any legal basis upon which the decision of the RRT could be attacked. 

7. I conclude that the judicial review application discloses no arguable case and, further, that no arguable case could be mounted by or on behalf of this applicant.  I will therefore dismiss the application.

8. Costs should follow the event. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application in accordance with paragraph (a) of item 1 of part 2 to schedule 1 to the Federal Magistrates Court Rules, in other words $1,000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  7 February 2006