SZIEF v Minister for Immigration
[2007] FMCA 1080
•5 July 2007
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 Panadol for the child, and Codral Cold and Flu tablets for the second applicant. At no time had a doctor been consulted because, in the Applicant's view, neither his wife nor his child were so ill as to require the attention of a doctor.
The Applicant agreed that he made no attempt to contact the Court or the first respondent to seek an adjournment of the hearing, despite being aware prior to 8 May 2007 that his wife and child were ill. Indeed, it was not until some 23 days after the hearing that the applicant sought to file the application that is the subject of this afternoon's hearing.
I accept that the Applicant's wife may have been unwell and that his child may have been unwell.
However, there is no medical certificate or evidence provided to this Court to support an assertion that the Applicant's wife or child, or both, were so ill that they required the attention of the Applicant. Further, there was no evidence that would provide any explanation as to why the Applicant was unable to contact the Court or the first respondent. In the circumstances, I am not satisfied that the explanation provided by the Applicant is reasonable.
However, even if I were persuaded that either the Applicant or the second named applicant has a reasonable excuse for failing to appear at the hearing, it is necessary to consider whether there is utility in reinstating the proceeding for judicial review of the Tribunal's decision.
The amended application filed by the Applicant on 7 April 2006 contains the bare assertion that the Tribunal failed to give natural justice. There are no relevant particulars to support the allegation and no evidence has been filed by or on behalf of the Applicant to support the allegation.
The first respondent tendered to the Court a bundle of relevant documents, identified as the Court Book filed on 1 March 2006 and marked Exhibit 1R.
Exhibit 1R made clear that an invitation was sent to the Applicant on 17 October 2005 inviting the applicant to come to a hearing on
24 November 2005. The letter was sent to the applicants at the address identified as the address for service in the application for review received by the Tribunal on 27 September 2005. The first respondent tendered a business record of the Tribunal that shows that the letter of invitation, dated 17 October 2005, according to the registered post records of the Tribunal, was sent to the applicant on that date.
In the course of giving evidence this afternoon, the applicant stated that he did not receive that letter of invitation. However, in the light of the evidence before the Court, even if the applicant did not receive the invitation, there is nothing to suggest that the Tribunal's decision to proceed with its review without taking any further steps to enable the applicant to appear before it was made other than in accordance with the statutory regime.
Under the Migration Act 1958 (Cth) (“the Act”) pursuant to s.422B of the Act, pt.7 div.4, is taken to be an exhaustive statement of the natural justice hearing rules. Division 4, requires inter alia that the Tribunal send to the Applicant an invitation to a hearing and in doing so must do so in accordance with the statutory regime that commences with the obligations of s.425 of the Act.
Section 426A of the Act provides that if an applicant is invited under s.425 to appear before the Tribunal and does not appear at the time and place at which the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
As stated above in these reasons, there is nothing to suggest that the Tribunal failed to comply with its obligations under s.425 of the Act and, indeed, the Tribunal's decision records that its decision to make a decision on the review without taking any further action to enable the applicants to appear before it, was made pursuant to s.426A of the Act.
There is no other allegation of a failure by the Tribunal to comply with any other relevant provision in pt.7, div.4 of the Act and none is apparent on the face of the Tribunal's decision records.
In its decision, the Tribunal noted that the applicants made general claims and provided no details or evidence beyond assertions made that the shop where the applicant worked was damaged because of his ethnicity.
In the circumstances, the Tribunal was unable to be satisfied on the material before it that the statutory criteria required for being a refugee under s.36(2) of the Act were met by the applicants. Where the Tribunal is not so satisfied that an applicant met the relevant statutory criteria for being a refugee then the Tribunal is bound to refuse the applicant a protection visa pursuant to s.65 of the Act.
In the circumstances, there is no arguable case with any reasonable prospects of success that has been identified by the applicant this afternoon and none is apparent on the material in evidence before the Court this afternoon in respect of the Tribunal decision.
In the circumstances, there would be no utility in making the orders sought by the applicant in this application, filed on 1 June 2007, that the orders made by this Court on 8 May 2007 be set aside.
Accordingly, the application, filed in this Court on 1 June 2007, seeking that order is dismissed.
The first respondent sought costs fixed in the amount of $600. Such sum is well within the relevant costs schedule of this Court and, accordingly, I order that the applicant pay the costs of the first respondent fixed in the amount of $600.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 9 July 2007
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