SZIRJ v Minister for Immigration
[2006] FMCA 737
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIRJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 737 |
| MIGRATION – Application for reinstatement of a judicial review application dismissed for default of appearance by the applicant – evidence of the applicant explaining her non appearance rejected – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant: | SZIRJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1098 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 23 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents | Ms F Kerr Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The applicant’s name is not to appear on the transcript of today’s hearing.
The reinstatement application filed on 18 May 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 $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1098 of 2006
| SZIRJ |
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 18 May 2006, in effect seeking the reinstatement of a show cause application which had been filed on 12 April 2006. I dismissed the show cause application on 15 May 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‑attendance of the applicant at a directions hearing at 9.30 am on that day. The reinstatement application is supported by an affidavit also filed on 18 May 2006. On the same day the applicant filed a notice of change of address for service.
I required the applicant to give oral evidence in relation to her affidavit. She adopted the affidavit as complete and accurate. In the affidavit the applicant states that she was aware of the time and date for the directions on 15 May 2006 and attempted to come to court from Strathfield. However, because of traffic jams she arrived at court after her application had been dismissed. The applicant deposes her English is not good and she was unable to contact the Court or the Minister's lawyer when she found she could not get to court on time because of the traffic jams. The applicant deposes she did not know what to do when she realised she could not get to court on time.
I found the applicant to be a most unimpressive witness in giving her oral evidence. The applicant confirmed that at the time she filed her judicial review application she was living in an apartment in World Square in the city. As at 18 May 2006 she was living in an apartment in Ultimo. She said that she moved immediately before 15 May 2006. The applicant claims that she chose to stay with a friend in Strathfield on the night of 14 May 2006 because of the incomplete state of her new apartment. She also claims, in her oral evidence, that she was unwell for several days before the directions hearing on 15 May. None of this was mentioned in her affidavit. The applicant asserted in her oral evidence that she did not seek any adjournment of the hearing in the light of her illness because the hearing was so important to her. However, notwithstanding her illness she asked the Court to believe that she chose to stay with a friend a considerable distance from the city rather than at either her former or present addresses in or close to the city. The applicant also stated in her oral evidence that she left Strathfield to come to court at approximately 9.00am. That is a mere 30 minutes before she was due in court. She claims that the friend with whom she was staying that night assured her that this would be sufficient time. This is very difficult to believe. Even without a traffic jam the applicant would have struggled to reach court in time.
Initially in her oral evidence, I understood the applicant to be saying that she was travelling to court with her friend. However, when I pointed out to her that in her affidavit she said she was travelling by taxi she stated that she was not travelling with her friend but by taxi. She could not recall the name of the taxi company. She did not obtain a receipt for the fare paid even though she asserts she paid $50, which is a very substantial taxi fare. The applicant confirmed that she has a mobile telephone number as indicated in her judicial review application, but asserted that she could not contact the Court because of her poor English. She gave evidence that on arrival at court she had at least one, and possibly two, conversations with persons in the Court who explained the circumstances. When I asked her how she was able to understand those conversations she told me that a complete stranger she happened to meet in court and who happened to speak Chinese undertook these conversations on her behalf. Later, the applicant asserted that she had telephoned the Minister's solicitors at about 9.20am to advise of her problem. That is inconsistent with what is in her affidavit. If she was able to telephone the Minister’s solicitors she should have been able to telephone the Court. I understand from Ms Kerr, who appeared for the Minister, that the Minister's solicitors do record a telephone call from someone after the Court hearing at about 10.30am.
The applicant, in her submissions, pressed upon me that I should accept her explanation for her non-attendance as a sufficient explanation. Ms Kerr, for the Minister, made the same submission. I reject both submissions. I do not believe the applicant's story. I do not accept her as a witness of truth. Even if her evidence was true, which I do not accept, she has shown a cavalier attitude in relation to her arrangements for attendance at court. I find that she has not advanced a sufficient explanation for non‑attendance at 9.30 am on 15 May 2006.
Even if I had been persuaded that a sufficient explanation for non‑attendance had been advanced, it would still have been necessary for me to consider whether the show cause application raised a serious question to be tried. It does not. The application sets out three grounds of review. The first asserts a breach of s.424A of the Migration Act 1958 (Cth) but gives no particulars. Despite repeated prompting on my part, the applicant was completely unable to identify any information that she considers should have been disclosed to her by the RRT that was not disclosed. It is not apparent from my reading of the decision of the RRT what information there would have been material to the decision which enlivened the obligation of disclosure in s.424A. The applicant failed before the RRT because she was completely disbelieved. The utter state of disbelief arrived at by the presiding member appears to me to have been based upon the applicant's evidence at the hearing conducted by the RRT.
The second ground of review in the show cause application is no more than an attack upon the merits of the RRT decision. The third and final ground of review is an assertion that the RRT’s satisfaction that the applicant was not a refugee was not based upon reasoning which provided a rational or logical foundation for its belief. That assertion must fail in the face of the reasoned decision made by the RRT.
I find that the show cause application filed on 12 April 2006 does not disclose a serious question to be tried. Accordingly, I dismiss the reinstatement application filed on 18 May 2006.
Costs should follow the event. Although not in a position to quantify the Minister's legal costs on the reinstatement application, Ms Kerr submits that these would be relatively modest. The applicant did not wish to be heard on costs. I will order that the applicant pay the Minister for Immigration's costs and disbursements of and incidental to the reinstatement application, fixed in the sum of $500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 May 2006
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