SZIIA v Minister for Immigration - [2006] FMCA 570

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIA v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 570

MIGRATION – Review of Refugee Review Tribunal decision – application for reinstatement of judicial review application – dismissal for non appearance – no serious issue to be tried.

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

Applicant:

SZIIA

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG426 of 2006

Judgment of:

Driver FM

Hearing date:

20 April 2006

Delivered at:

Sydney

Delivered on:

20 April 2006

REPRESENTATION

Counsel for the Applicant:

Dr V Wan

Solicitors for the Respondent:

Ms A Radich
Blake Dawson Waldron

INTERLOCUTORY ORDERS

The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The reinstatement application filed on 13 March 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG426 of 2006

SZIIA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 13 March 2006 seeking reinstatement of a show cause application under the Migration Act 1958 (Cth) filed on 9 February 2006. The show cause application sought review of a decision of the RRT made on 21 December 2005. That application was supported by an affidavit filed on the same day to which was annexed the decision of the RRT. The decision was handed down on 12 January 2006 and on that basis I find that the show cause application was filed within time.
The show cause application came before me on a first court date on 10 March 2006. On that occasion there was no appearance by or on behalf of the applicant and I dismissed the application pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I also made a costs order and directed the Minister to draw the orders to the applicant's attention.
The reinstatement application is supported by a short affidavit by the applicant in which she explains that she was unable to attend the hearing on 10 March 2006 because she was unable to get out of bed that morning due to severe and sudden period pain.
The applicant was today represented by a barrister, Dr Wan. The applicant gave oral evidence and adopted her affidavit. Under cross‑examination the applicant said that from time to time she suffers from severe period pain but she is unable to predict whether a particular period will be severe or not. She said that 10 March was the second day of her period and she did not anticipate the day before that she would have a problem so severe as to prevent her attending court. She said that she was so unwell that she was unable to get out of bed due to nausea and that this prevented her making any contact with the Court to advise of her difficulty. When asked why she did not seek medical assistance in order to obtain a doctor's certificate she said that she did not seek medical help with her period pain but took ordinary painkillers, in particular Panadol, for it. She consulted friends after she recovered who advised her of the need to make the reinstatement application as she has now made.
There are two questions to answer in resolving the issue of whether the orders I made on 10 March 2006 should be vacated. The first is whether the applicant has advanced a sufficient explanation for her non-attendance at court on 10 March. The other question is whether there is a serious issue to be tried arising out of the show cause application.
I am troubled that the applicant's claim of illness is uncorroborated. It would have been a simple matter for her to obtain a medical certificate if, as she claims, she was particularly unwell on 10 March. I am also troubled that she did not attempt to contact the Court to advise of her difficulty on 10 March. To her credit, she did file her reinstatement application at the first available opportunity on the following Monday. That indicates that she acted very properly once she became aware of the dismissal of her application.
Although I have some doubt about the veracity of the applicant's claim of illness, I accept her evidence that she was unwell and I am prepared to give her the benefit of the doubt that she was too unwell to contact the Court on 10 March and that the onset of her illness was so sudden that she did not anticipate it the day before. I accept that she has advanced a sufficient explanation for her non-attendance at court on 10 March 2006.
However, I am not satisfied that the show cause application discloses a serious issue to be tried. That application asserts jurisdictional error in only the most general of terms. It is, in effect, a grab bag of bald assertions of error. None is particularised and in the absence of particulars the allegations are meaningless.
In her accompanying affidavit the applicant, apart from deposing as to the circumstances relating to her claims to refugee status, reviews problems encountered with her former migration agent, Mr Hoq Mollah, problems with the English language and sensitivities resulting from having to deal with a male interpreter in her proceeding in the Refugee Review Tribunal (“the RRT”).
The applicant had initially claimed protection for religious reasons but subsequently asserted membership of a particular social group as a lesbian. It is plain from the RRT decision that the applicant failed before the RRT because she was not believed. The presiding member reviewed her claims and her evidence at the hearing conducted by the RRT at some length. The findings and reasons portion of the decision is relatively brief but that is because the presiding member had concluded that the applicant was such a poor witness that her evidence could not be accepted.
The applicant had the misfortune to involve herself with the now discredited former migration agent Mr Hoq Mollah, but it was significant that before the RRT the applicant did not distance herself from claims made on her behalf by Mr Mollah that she later acknowledged were false. She experienced other problems with a second migration agent, Mr Kyselov, and the presiding member was prepared to accept incompetence on the part of both migration agents and worse in the case of Mr Mollah. However, those considerations and the consideration of the applicant's lack of familiarity with the English language were not sufficient to override the very adverse impression that the presiding member gained about the applicant's truthfulness from her performance at the hearing conducted by the RRT.
There is, in my view, nothing on the face of the RRT decision which points to jurisdictional error. Neither is there anything arising from the show cause application filed on 9 February 2006 which raises, in my view, a serious question to be tried.
Dr Wan was only recently instructed by the applicant and he was not in a position today to produce any proposed amended judicial review application. I make no criticism of him but I note that the applicant has not taken the opportunity which presented itself between 9 February 2006 and today to produce to the Court any more persuasive challenge to the RRT decision.
In all the circumstances I have decided to dismiss the reinstatement application and I will so order.
On the question of costs, the application having been dismissed, costs should follow the event. After some discussion with the representatives and referral to the Court scale of costs I accepted Ms Radich’s submission that the Minister should receive $2,200 as a party/party assessment. I will so order.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 27 April 2006