SZIPN & Anor v Minister for Immigration & Anor
[2006] FMCA 1751
•27 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIPN & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2006] FMCA 1751 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reason of religious belief – where applicant did not attend Federal Magistrates Court hearing – where Tribunal not satisfied that the applicant was a credible witness. PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment after applicant failed to appear – motion for reinstatement of judicial review application – whether sufficient explanation advanced – where applicant previously sought reinstatement by Notice of Motion and failed to appear – whether reinstatement futile. |
| Federal Magistrates Court Rules 2001 rr.13.03A(c), 16.05 |
| SZIPN v Minister for Immigration & Anor [2006] FMCA 1485 referred to SZIPN& Anor v Minister for Immigration & Anor (No.2) [2006] FMCA 1628 referred to. SZBRB v Minister for Immigration [2004] FMCA 285 followed. SZCPY v Minister for Immigration [2004] FMCA 646 followed. |
| First Applicant: | SZIPN |
| Second Applicant: | SZIPO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 989 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 November 2006 |
| Date of Last Submission: | 24 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2006 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 989 of 2006
| SZIPN |
First Applicant
| SZIPO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application by means of a Notice of Motion to set aside an order made on 23rd October 2006 dismissing an application by way of Notice of Motion to set aside the decision made on 25th September 2006. That earlier decision set aside the Applicant’s application for review of a decision of the Refugee Review Tribunal. This is the Applicant’s second attempt to reinstate her substantive application.
Background
The Applicant originally filed an application for review of a decision of the Refugee Review Tribunal on 3rd April 2006. The application was first mentioned before Lloyd-Jones FM 2nd May 2006 and adjourned for further directions on 31st August 2006. On that date the application was further adjourned to 14th December 2006.
Arrangements were made to transfer the matter into my docket, and on 12th September 2006 the Court wrote to the Applicant at her address for service, a Post Office box number in the Sydney Business District, advising her that the matter had been listed for directions before me at 11:30am on Monday 25th September 2006. The Applicant did not appear on that date. The Court records show that the matter was called at 11:52am and again at 12:13pm. As there was no appearance by or on behalf of the Applicant I dismissed the application for non-appearance under the provisions of Rule 13.03A(c) (SZIPN v Minister for Immigration & Anor [2006] FMCA 1485).
The Applicant filed a Notice of Motion on 16th October 2006 seeking to set aside the judgment made on 25th September 2006 which had been made in her absence. She accompanied that document with an affidavit in which she claimed that:
The application was dismissed on 25 September 2006 without any notice to the applicant.
The Notice of Motion was listed before me at 11:30am on 23rd October 2006. The Court records show that the Applicant did not appear when the matter was called at 11:30am. I held the matter in the list and called the matter again at 12:00 noon. There was no appearance by or on behalf of the Applicant, so I dismissed the Notice of Motion for non-appearance under the provisions of Rule 13.03A(c) (SZIPN & Anor v Minister for Immigration & Anor (No.2) [2006] FMCA 1628).
Notice of Motion
The Applicant filed this present Notice of Motion on 10th November 2006 seeking to set aside the orders of 23rd October 2006.
The Applicant has filed an affidavit in support, saying:
1. I filed an application in the Federal Magistrates Court of Australia on 3 April 2006, to review the decision made by RRT affirming decision of a delegate of the Minister not to grant a protection visa.
2. The application was dismissed on 23 October 2006 due to I did not appear in the hearing.
3. I did not find the court on the above hearing date.
4. I wish to file Notice of Appeal now and I hope I will be given leave to do that
The application was listed for hearing on the morning of Monday
20th November 2006. The Applicant did appear on that occasion.
She was unrepresented but had the assistance of an interpreter in the Mandarin language. The Applicant told the Court that she wished to have the services of an interpreter of the Fujian language. I note that when the application was before Lloyd-Jones FM on 31st August 2006 the Court papers showed that a Fujian interpreter was preferred.
The interpreter on 20th November, whilst no doubt perfectly competent to interpret from English to Mandarin, is not an accredited Fujian interpreter.
As it appeared likely that the Applicant would be required to submit to cross-examination, I decided to adjourn the application to 11:00am on Friday 24th November so that the services of a Fujian interpreter could be obtained.
The Applicant attended Court on 24th November and gave evidence with the assistance of an interpreter in the Fujian dialect. The Applicant said that she had not received the letter from the Court telling her that the matter was listed for further directions on 25th September 2006.
The Applicant was shown a copy of a letter from the Court dated
12th September 2006 advising her of the Court date. The letter was addressed to her at the address for service on her application filed on 3rd April 2006. That address is not her home address but a Post Office Box number in the Sydney Central Business District. The Applicant denied receiving the letter and could not explain why she did not receive it.
The Applicant’s Notice of Motion filed on 16th October 2006 and her Notice of Motion filed on 10th November 2006 show a different address, in Elizabeth Street, Sydney. The Applicant explained that this was her friend’s address. She told the Court that she did not attend the Court on 23rd October because she could not find the Court. Previously, she had attended Court before Lloyd-Jones FM on Level 6 of the same Court Building, but she said that she was able to attend Court on that occasion because she had met “a villager” who had brought her to the Court. She had been able to find the Court on Monday 20th November because she had met the applicant in another matter who was before the Court on the same day. That man also spoke the Fujian dialect.
Principles to be applied
It is well established that, in considering an application for reinstatement, the Court must look not only at the circumstances which led to the party missing the hearing, but also at the merits of the substantive application. This principle was, with respect, stated succinctly by Driver FM in SZCPY & Anor v Minister for Immigration [2004] FMCA 646 at [12]:
Where there are no prospects for success on a substantive application, reinstatement would be futile, therefore an application for reinstatement ought to be refused. This approach was taken by Federal Magistrate Raphael in SZBRB v Minister for Immigration [2004] FMCA 285 where he refused to reinstate proceedings where the facts indicated there was no possible utility in reinstating and therefore he held that it would not be in the interests of justice to reinstate the matter.
I asked the Applicant about her substantive claim. She said that she did not understand what the Tribunal was talking about. She did not understand the questions and how to express herself. She conceded that the interpreter at the Tribunal hearing spoke her dialect but she did not understand the real meaning of the questions that the Tribunal asked her. The Applicant also told the Court that sometimes she did not understand the interpreter at the Tribunal hearing because she had had very little schooling.
Later, the Applicant told the Court that she did make an attempt at the hearing to ask the Tribunal if she should bring more evidence. She said she asked whether she should provide a copy of her baptism certificate to the Tribunal but the Tribunal said no. She had not taken her baptism certificate to the hearing with her.
Conclusions
In the case before me the Applicant and her husband SZIPO sought Protection (Class XA) visas on 2nd November 2005 which were refused on 16th November. They applied to the Refugee Review Tribunal on 15th December 2005 for a review of that decision. The Applicants attended a hearing of the Tribunal on 8th February 2006, where the First Applicant gave oral evidence, claiming a fear of persecution if she were to return to the People’s Republic of China because she is a member of the Shouters Church, which is regarded as an illegal and anti-government organisation.
Although the Second Applicant, the First Applicant’s husband, attended the hearing, he did not give evidence. He told the Tribunal that he was attending the hearing to provide support for his wife. He said that he had no claims of his own to refugee status and wished to rely on those of the First Applicant. He did not wish to give evidence.[1]
[1] See Court Book at 88
The Tribunal affirmed the delegate’s decision not to grant protection visas to the Applicants. The Tribunal was satisfied that the First Applicant was a national of the People’s Republic of China, having sighted her passport. The Tribunal was satisfied that the Shouters Sect is banned in the People’s Republic of China because it is considered to be a cult and that people known or suspected to be Shouters may be detained for lengthy periods and possibly subjected to physical mistreatment. The Tribunal was also satisfied that this treatment, or rather, perhaps, mistreatment, might constitute persecution for reason of religion.[2]
[2] Court Book at 95
The Tribunal formed an adverse view of the First Applicant’s credibility, saying:
I found the applicant[3] to be an unsatisfactory and unconvincing witness. Although she claims to have little education and to be illiterate, I do not believe that a lack of education or sophistication accounts for the many deficiencies in the applicant’s oral evidence. The applicant was as vague and unresponsive when questioned about her own direct experiences as she was when asked about more abstract matters relating to her faith. Her inappropriate response to many questions was to recite the claims presented in her written statement, however she was not able to elaborate on these, or provide additional information about the claims made in her statement when asked to do so. On many occasions she failed to provide responses to questions even when they were repeated a number of times, instead merely reiterating the information contained in the statement.[4]
[3] meaning the First Applicant
[4] Court Book at 95-96
The Tribunal went on to find that the Applicant’s evidence was not reliable and much of it was not credible. The Tribunal summarised the case in this way:
I do not accept that the applicant is a Shouter, or that she has in the past or may in the reasonably foreseeable future, face persecution as a Shouter. I am satisfied that there is no real chance that the applicant would face persecution in the future for reason of her religion or her religious beliefs.
The Applicants filed their Application under Rule 44.05 on 3rd April 2006. They have not filed any amended application. They were referred to a barrister for legal advice under the panel advice scheme on
17th May 2006, according to the Court file.
The application claims that the Tribunal failed to comply with its obligation pursuant to the Migration Act 1958 and denied the Applicants procedural fairness. There were 5 particulars given.
Particular 1a complains about the delegate’s decision, referring to aspects of the delegate’s findings about the Shouters Church and how the Applicants obtained their passports. This is not a ground of review.
Particular 1b takes issue about a finding by the Tribunal about the delay of some three weeks between the date when the First Applicant obtained her passport and when she departed from China. This ground is no more than a challenge to a factual finding made by the Tribunal and does not claim any jurisdictional error.
Particular 1c complains that the Tribunal would not let the First Applicant use written notes to give her evidence. There is no evidence of this and the Tribunal Decision Record suggests the reverse.
This ground does not show any jurisdictional error.
Particular 1d takes issue with the Tribunal’s finding that the First Applicant’s answers were extremely vague and complains that the Tribunal was “not patient enough”. This does not show a jurisdictional error.
Particular 1e claims that the First Applicant gave “a clear statement about her religious belief and activities in this connection”. This is no more than cavilling at a factual finding by the Tribunal and is an attempt at merits review. Merits review is not available on an application for judicial review.
Mindful that the Applicants are not legally represented, I have conducted my own independent examination of the material, but I cannot discern any arguable case for jurisdictional error. There are no s.424A issues. It is clear that the Tribunal rejected the application because of the lack of credibility of the First Applicant as a witness.
As the Second Applicant, SZIPO, has no separate claim for refugee status, his claim falls with that of the First Applicant, SZIPN.
In my view, the Applicants’ substantive claim has no reasonable prospects of success and reinstatement would be futile, even if I were of the view that the Applicant had made out a case for reinstatement. Having heard the Applicant SZIPO give evidence, I am not satisfied that she has made out a case for reinstatement. The Applicant’s reason for not attending Court on 25th September because she claims she did not receive the letter from the Court appears dubious. The letter was sent to her address for service, a Post Office Box number. A notice of address for service is an address where documents can be served on a party. If Applicants give a Post Office Box number as an address for service, it is incumbent on them to check that box for mail on a regular basis. If they give a friend’s mailing address, then they must ensure that the friend passes on necessary correspondence.
The Applicant also claimed that she could not find the Court on
23rd October 2006 when her application to set aside the order of
25th September was due to be heard. I find this explanation hard to accept. The Applicant has acquired a new mailing address which belongs to a friend, who may or not be the person who prepared her typed applications and affidavits for her. Her explanation that she could not find the Court, when she had previously missed the earlier Court appearance, lacks credibility and I do not accept it.
In any event, during the hearing of the Applicant’s application to set aside the order of 23rd October, I virtually conducted a hearing of the merits of the Applicant’s substantive case for review of the Tribunal decision. I heard submissions from her and from the solicitor for the Respondent Minister. I have read the Applicant’s amended application and considered the grounds for relief in that application. I have also considered the grounds that she raised orally in the hearing before me, which were not covered in her amended application. The Applicant has not shown any jurisdictional error on the part of the Tribunal.
I am aware of the fact that neither the Applicant nor her husband SZIPN were legally represented, although I note from the Court’s correspondence file that on 17th May 2006 they were referred to a barrister on the independent legal advice panel, Mr Leonard Karp.
I have read through the Tribunal decision and other material in the Court Book in order to discern whether any arguable case for jurisdictional error can be made out. I cannot discern any jurisdictional error.
For the reasons I have stated above, I am not satisfied that the Applicant has made out a case for setting aside the earlier orders.
Even if she had shown a good reason for not attending Court on two prior occasions, I am satisfied that reinstatement of her application and that of her husband, would be futile, because it has no reasonable chance of success.
This application will be dismissed with costs in favour of the First Respondent.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 27 November 2006
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