SZIEF v Minister for Immigration - [2007] FMCA 1080

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEF & ANOR v MINISTER OF IMMIGRATION & ANOR

[2007] FMCA 1080

MIGRATION – Refugee Review Tribunal – Practice and procedure – whether RRT complied with statutory obligations – whether order dismissing proceeding by reason of the applicants failure to appear should be set aside – whether the applicants had a reasonable excuse for failing to appear – whether there was utility in setting aside the Court’s order dismissing the proceeding.

Migration Act 1958 (Cth), ss.36(2); 422B; 425; 426A; pt.7 div.4

First Applicant:

SZIEF

Second Applicant:

SZIEG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG233 of 2006

Judgment of:

Emmett FM

Hearing date:

5 July 2007

Date of Last Submission:

5 July 2007

Delivered at:

Sydney

Delivered on:

5 July 2007

REPRESENTATION

The Applicant appeared on his own behalf and for the second named applicant

Solicitors for the Respondent:

Mr R. White, Sparke Helmore.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG233 of 2006

SZIEF

First Applicant

SZIEG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIUBNAL

Second Respondent

REASONS FOR JUDGMENT

In the application, filed on 1 June 2007, the applicants sought an order from this Court setting aside the order made by this Court on 8 May 2007 dismissing the proceeding commenced by way of application filed on 23 January 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 29 November 2005.
The first named applicant (“the Applicant”) confirmed that he appeared today on behalf of both himself and the second named applicant, being his wife.
The Applicant read two affidavits filed in support of the present application.
One affidavit was an affidavit sworn by the second applicant on

29 May 2007, in which she stated:
“I did not attend the hearing on 8 May 2007 because I felt sick that day.”
The other affidavit was an affidavit sworn by the Applicant on 29 May 2007, in which the Applicant stated:
“I did not attend the hearing because my wife and my child were both sick that day. I had to take care of them.”
The first respondent opposes the orders sought this afternoon by the Applicant on the basis that the explanation offered by the Applicant for the failure to appear is not, in the circumstances, reasonable; and further, that there is no utility in the Court setting aside the decision dismissing the proceedings because the application for judicial review has no reasonable prospect of success.
Mr White, solicitor, on behalf of the first respondent cross-examined the Applicant on the matters contained in his affidavit to the effect that the Applicant's evidence was that on the day of the hearing his wife and child had temperatures of less than 40 degrees and his wife also had a cough. They had been ill for one or two days prior to the hearing date. They had been treated by the applicant with…

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: [2007] FMCA 1080
Decision Date: 5 July 2007

CaseChat Overview and Summary

The applicants, SZIEF and SZIEG, sought to have the Federal Magistrates Court set aside an order dismissing their application for judicial review of a decision by the Refugee Review Tribunal. The Tribunal had determined that the applicants were not entitled to a protection visa. The applicants argued that they had not appeared at a hearing due to illness, and requested that the dismissal order be set aside. The Minister for Immigration and Citizenship opposed the application, arguing that the explanation for the non-appearance was not reasonable and that there was no utility in setting aside the dismissal order as the application for judicial review had no reasonable prospect of success.

The court found that the applicants' explanation for their non-appearance at the hearing was not reasonable. There was no medical evidence to support their claims of illness, and the court found that the applicants had not taken reasonable steps to seek an adjournment or inform the court of their situation. The court also found that there was no utility in setting aside the dismissal order, as the application for judicial review did not present an arguable case with any reasonable prospects of success. The applicants had made vague claims without providing details or evidence to support their assertions, and the Tribunal's decision was based on the material before it.

The court dismissed the application and ordered the applicants to pay the Minister for Immigration and Citizenship's costs in the amount of $600. The court found that the Minister's costs were reasonable and within the relevant costs schedule of the court. The applicants' application to set aside the dismissal order was therefore unsuccessful.

Orders