SZITC v Minister for Immigration & Anor

[2007] FMCA 424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZITC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 424

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision by Refugee Review Tribunal to affirm delegate’s decision not to grant a Protection (class XA) visa.

PRACTICE & PROCEDURE – Judgment – set aside judgment – application to set aside judgment – where applicant had not attended Court on the hearing day.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A

SZBRB v Minister for Immigration [2004] FMCA 285
SZCPY & Anor v Minister for Immigration [2004] FMCA 646
SZIPN & Anor v Minister for Immigration & Anor [2006] FMCA 1751

Applicant: SZITC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1177 of 2006

Judgment of: Scarlett FM

Hearing date: 19 March 2007

Date of last submission: 19 March 2007

Delivered at: Sydney

Delivered on: 19 March 2007

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: No Appearance

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1177 of 2006

SZITC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to set aside a decision made by the Court on

   
   

   10 August 2006.  The application was listed for Final Hearing on that day, but the Applicant did not attend. In the circumstances, the application was dismissed because the Applicant did not appear.

2. On 2^nd March 2007 the Applicant filed an application to set aside that decision and reinstate his application. In his affidavit he said he did not receive his decision letter from the Federal Magistrates Court.  He said that he was at a different Court on the final hearing date.

3. When the Court considers 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.  Where there are no prospects for success on a substantive application an application for reinstatement should be refused because reinstatement would be futile.  In this regard, I follow the decisions of Raphael FM in SZBRB v Minister for Immigration [2004] FMCA 285 and Driver FM in SZCPY & Anor v Minister for Immigration [2004] FMCA 646 (see also SZIPN & Anor v Minister for Immigration & Anor [2006] FMCA 1751).

4. The Applicant attended Court on the First Court Date of his application for review of the decision of the Refugee Review Tribunal on 29 May 2006.  There was a Korean interpreter present on that day to assist the Applicant. The application was listed for Final Hearing at 11:30am on 10 August 2006.  The Court records show that the Applicant received legal advice from a barrister on the Legal Advice Panel, Mr Stephen Lloyd. Apparently the Applicant did not attend an interview with Mr Lloyd, so Mr Lloyd prepared a written advice and posted it out to him.  The Applicant did not attend the hearing on 10 August because he said that he went to another Court.  He said that he wandered around that other Court but could not find where his case was to be heard. 

5. I note from my decision on 10 August 2006 that although the matter was listed for Hearing at 11:30am, I left the matter in the list until 12:01pm.  I also said in paragraph 3 of my decision on that date:

   My staff have made inquiries just in case the Applicant mistakenly went to the Court in Queen's Square. There is no sign of the Applicant whatsoever.

6. The Applicant gave evidence before me this morning.  He was not able to say which Court he went to, except that it was a circular building.  He said that he took a taxi and asked the taxi driver to take him to the Court but he did not know that he was not in the same building. 

7. It is surprising that the Applicant who had attended Court on 29 May was not able to identify on 10 August that he was not in the same building. The Applicant, although he was asked in the witness box, was not able to indicate why he waited until 2 March this year to file his application to reinstate.  It is surprising that it has taken him six months to commence proceedings. I note that he has given the same address for correspondence as he gave in the earlier proceedings and indeed is the same address that he gave to the Refugee Review Tribunal.  There is no evidence that the correspondence from the Court to the Applicant was returned unclaimed.  I am not satisfied that the Applicant has made out a sufficient reason for his failure to attend the hearing. 

8. In any event, the Applicant did not attend the hearing of the Refugee Review Tribunal. I note that the Tribunal prepared a checklist, a copy of which appears at p.57 of the Court Book.  The relevant notes on the checklist say this:

   Invitation sent 31/1/06. 

   No adviser. 

   No phone number. 

   No returned mail. 

   No further action is possible.

9. A reading of the Tribunal decision shows that the Tribunal dealt with the matter under the provisions of s.426A of the Migration Act because the Applicant did not appear. A copy of the Tribunal decision appears at pp.67 through to 72 of the Court Book. The Tribunal found on the basis of the Applicant's passport that the Applicant was a citizen of the Republic of Korea. The Tribunal gave these reasons for not being satisfied that the Applicant had made out his case:

   The applicant's claims are so general and lacking in detail that I cannot establish the facts of the matter, nor how they relate to the various grounds of the Refugees Convention. I note that the applicant was put on notice, in writing, that I was unable to make a decision in his favour on the material before me.  Despite that, the applicant submitted no further information, nor did he take the opportunity offered to him to attend the hearing and present his testimony orally.[1]

   [1] See Court Book at p.71

10. On my reading of the decision and supporting documentation, I cannot discern any jurisdictional error. There is no breach of s.424A of the Migration Act as the Tribunal did not rely on any information as a basis for affirming the delegate's decision. The Tribunal invited the Applicant in plenty of time to attend the hearing and there is no breach of s.425. I am also of the view that the Tribunal was correct in applying s.426A of the Act in deciding to decide the matter when the Applicant did not attend the hearing. Consequently, I am satisfied that no jurisdictional error on the part of the Tribunal has been shown.

11. The Applicant has not made out a case for reinstatement. He has not provided a sufficient reason for not attending the hearing and reinstatement of his application would be futile in any event because no jurisdictional error appears on the part of the Tribunal. I propose to dismiss the application. I note that the Applicant did not serve a copy of the application on the solicitors for the Respondent, Messrs Clayton Utz.  I require a transcript of my reasons for this decision. The application will be removed from the list of cases awaiting finalisation.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  27 March 2007