SZIEN v Minister for Immigration

[2006] FMCA 897

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 897

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application for reinstatement of a judicial review application – dismissal for non appearance by the applicant – explanation for non appearance insufficient as not credible – reinstatement application dismissed.

PRACTICE AND PROCEDURE – The receipt of transcript as evidence and the questioning of witnesses by the Court.

Federal Magistrates Act 1999 (Cth), s.63
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.91X

Applicant: SZIEN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG242 of 2006

Judgment of: Driver FM

Hearing date: 22 June 2006

Delivered at: Sydney

Delivered on: 22 June 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Palmer
Clayton Utz

INTERLOCUTORY ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The transcript of the hearing on 2 June 2006 is to be received in evidence, pursuant to rule 15.06 of the Federal Magistrates Court Rules 2001 (Cth).

3. The reinstatement application filed on 6 June 2006 is dismissed.

4. The applicant is to pay the first respondent’s costs and disbursements of an incidental to the reinstatement application, fixed in the sum of $800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG242 of 2006

SZIEN

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 filed on 6 June 2006 seeking the reinstatement of a judicial review application. The judicial review application was dismissed by me on 2 June 2006, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on account of the non appearance of the applicant. The application asserts that the applicant did arrive at court on 2 June 2006 at 10.15am but he did not realise that his case was known as SZIEN. The application is supported by a short affidavit by the applicant filed on the same day which states:

   I did indeed arrive [at] the court on 2 June 2006 at 10.15am for the attending the hearing, but I did not realise it while I was called as “SZIEN”, because I thought that I should be called as [two names by which the applicant is known].

2. I invited the applicant to give additional oral evidence to augment his affidavit. He accepted that invitation. I questioned the applicant pursuant to s.63(1) of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”). He was also cross-examined by the Minister’s solicitor. I also received as evidence the transcript of the hearing on 2 June 2006 pursuant to rule 15.06 of the Federal Magistrates Court Rules.

3. The applicant acknowledged in his oral evidence that he had previously attended court on 1 March 2006 for a directions hearing.  He said that on that occasion he knew to come into court because he was called by his real name.  He said that he had received a letter from the Court telling him when to come to court, where to come, and which court to come to.  He said that he arrived well before the scheduled time at approximately 9.30am and that at least by 10.15am he was present directly outside the court room in the corridor.  He acknowledged when taken to the transcript that he may have seen the court officer come outside the court room on three or four occasions and call out something.  He said that he did not understand what the court officer said.  The transcript records that the matter was called three times, at 10.19am, at 10.24am and again at 10.29am.  The transcript also records that I received as exhibits correspondence sent on three occasions to the applicant advising of the date, time and place of the hearing. 

4. I asked the applicant whether he had brought a mobile phone with him to court.  He said that he had but that it was turned off.  I took the applicant to the transcript which records that the hearing was adjourned at 10.23am so that an attempt could be made to contact the applicant.  I note for the record that the Auscript recordist was probably working off a different timepiece to me as I had noted that the matter was called a second time at 10.24am, before the transcript records the matter was adjourned at 10.23am.

5. The purpose of the adjournment was to permit my associate, with the assistance of the interpreter, to attempt to telephone the applicant on a mobile telephone number he had provided to the Court.  The transcript records that the attempt to contact the applicant by telephone was unsuccessful because when the mobile telephone number was dialled there was no answer and the phone rang out.  When confronted with that evidence the applicant said that on 2 June 2006 he had brought with him a different mobile phone than the one with the number he had given to the Court. 

6. I then took the applicant to the portion of the transcript that records that at 10.29am the applicant was called by both of his actual names. The transcript also records that the court officer who called the applicant by name called sufficiently loudly for me to hear from the bench. I was concerned that the court officer had not precisely followed my instructions and had called not only the real names of the applicant but also the name of the case. The transcript records that I cautioned the court officer about the need to avoid breaching s.91X of the Migration Act 1958 (Cth). The applicant attempted to deal with this evidence by stating that he had not understood what the court officer was calling out. The transcript records that the hearing was terminated at 10.32am. The applicant stated that he waited outside court until 10.40am when he went to level 16 to speak to the registry.

7. I also invited the Minister's solicitor, Ms Palmer, who attended court on 10 June 2006 as well as today to give evidence. She agreed. Again I questioned her, pursuant to s.63(1) of the Federal Magistrates Act. Ms Palmer gave evidence that she arrived at court at approximately 10.00am and looked for the applicant. I note that it is unlikely that Ms Palmer would have recognised the applicant because she had not attended court on behalf of the Minister on 1 March 2006. A different solicitor attended on that occasion. Nevertheless Ms Palmer gave evidence that at 10.00am she only saw practitioners when she had walked up and down the corridor looking for someone who might be the applicant. Ms Palmer saw no one of Chinese appearance. Ms Palmer also gave evidence that she left court shortly after 10.32am and again looked for the applicant in the corridor. Again Ms Palmer saw no one of Chinese appearance. The applicant did not wish to cross-examine Ms Palmer.

8. I prefer the evidence of Ms Palmer to that of the applicant.  In addition, the applicant's evidence in essential details is implausible in the face of the transcript.  The applicant is not a witness of truth and I reject his evidence.  I find that the applicant was not present outside court when Ms Palmer arrived at approximately 10.00am.  I find that the applicant was not present outside court when Ms Palmer left court at approximately 10.32am.  I find that if the applicant was present at 10.29am when he was called by name he took a conscious decision not to enter the Court.  I reject his evidence that he did not hear and understand his own names being called.

9. In the circumstances, the applicant has failed to advance a sufficient explanation for his non attendance at court.  For the record, I note that if the applicant had advanced a sufficient explanation for his non attendance I would have been satisfied that there was a serious question to be tried. 

10. I dismiss the reinstatement application filed on 6 June 2006.

11. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $800.  That is a reasonable party/party assessment. Costs of reinstatement applications are not specifically covered in the Federal Magistrates Court scale of costs for migration matters.  The applicant did not wish to be heard on costs. 

12. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the reinstatement application, which I fix in the sum of $800.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  28 June 2006