SZIVZ v Minister for Immigration (No. 2) - [2006] FMCA 1128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIVZ v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2006] FMCA 1128

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – first respondent seeking dismissal pursuant to r.44.12 Federal Magistrates Court Rules 2001 – applicant’s application for adjournment to obtain legal advice refused – application does not raise arguable grounds –application dismissed.

Federal Magistrates Court Rules 2001, r.44.12; sch.1
Migration Act 1958 (Cth), ss.36; 65; 425; 425A; 426A

Abebe v The Commonwealth (1999) 197 CLR 510
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

Applicant:

SZIVZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1437 of 2006

Judgment of:

Emmett FM

Hearing date:

1 August 2006

Date of last submission:

1 August 2006

Delivered at:

Sydney

Delivered on:

1 August 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Ms J. Bautista, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1437 of 2006

SZIVZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks an adjournment of the show cause hearing this afternoon set down last Thursday, following a reinstatement application by the applicant following a dismissal by me of the application for the failure of the applicant to appear at the first Court date. It would appear that the failure of the applicant not to appear at the first Court date was not due to the fault of the applicant, but rather a confusion with the Court documents at the Registry.
The applicant filed his application for judicial review by this Court of a decision of the Refugee Review Tribunal (“the Tribunal”) made on

2 December 2005, on 18 May 2006.
On 22 May 2006, the first respondent wrote to the applicant identifying a list of legal service providers. That letter is marked ‘Exhibit 1R.’ Those service providers identified were the Legal Aid Commission, the Law Society of New South Wales, New South Wales Bar Association and Community Legal Centres. Contact details were provided in respect of each of those service providers.
The applicant seeks an adjournment this afternoon for the purpose of seeking legal advice and indeed I am prepared to accept that he has an appointment with the Legal Aid Commission this Thursday.
There are various factors that weigh on my mind in the exercise of the Court’s discretion as to whether an adjournment should be granted. The first is the desirability to any unrepresented litigant, particularly one who does not speak the language, to have an opportunity for legal advice. However, I am mindful that the applicant has taken no steps prior to the filing of his application in this Court to seek legal advice and made no mention last week when the matter was before me, of any approach by him to seek legal advice.
In considering whether the adjournment should be granted, I also have regard to the utility of any such adjournment. The matter was set down for a show cause hearing this afternoon pursuant to rule 44.12 of Federal Magistrates Court Rules 2001 on the basis that the applicant's application disclosed no arguable case.
The applicant claimed that he feared persecution from Islamists because he was ethnic Chinese and a Buddhist in Malaysia and that the authorities in Malaysia could not protect him. The applicant lodged his application, or an application was lodged on his behalf, for review by the Tribunal on 28 September 2005. The applicant has stated in evidence before me this afternoon that in fact he did not sign the application and nor did any person sign it on his behalf. The applicant identified a person called ‘Winsome’ as the person who completed the form. However, for the applicant's benefit, I shall assume that the application was in fact lodged at his request.
On 28 September 2005, the Tribunal acknowledged receipt of the application and, inter alia, informed the applicant that he should immediately send any documents, information or other evidence he wished the Tribunal to consider.
On 19 October 2005, the Tribunal sent a letter to the applicant informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. The letter then invited the applicant to attend a hearing to give oral evidence and present arguments in support of his claims. The letter identified the date, time and place of such a hearing; and also informed the applicant that the Tribunal would only change this hearing date for good reason; and that, if the applicant thought he may be unable to attend, he should contact the Tribunal immediately; and that, if he did not attend the hearing and the Tribunal did not postpone the hearing, the Tribunal could make a decision on his case without further notice.
The applicant was requested to complete a ‘Response to Hearing Invitation’ form and return it to the Tribunal as to whether or not he would be attending the hearing. The Tribunal, in its decision, noted that, on 19 October 2005, the Tribunal had written to the applicant in the terms referred to above and that no response had been received to the Tribunal's letter, although the letter was not returned to the Tribunal unclaimed. The Tribunal noted that the applicant did not nominate an authorised recipient. The Tribunal then, having noted that the applicant did not appear before it on the day, time and place at which he was scheduled to appear, purported to proceed with the conduct of its review pursuant to s.426A of Migration Act 1958 (Cth) (“the Act”) without taking any further action to enable the applicant to appear before it.
The invitation sent by the Tribunal to the applicant on 19 October 2005 was a document sent in accordance with s.425A of the Act and therefore s.425 of the Act. In those circumstances, s.426A of the Act provides that if an applicant is invited to a hearing under s.425 and does not appear before the Tribunal on the day on which, or at the time and place at which the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal made clear in its decision its awareness of the legislative regime that provided it with the discretion to proceed in the absence of the applicant and purported to exercise that discretion in accordance with s.426A of the Act.
In the circumstances, the Tribunal was entitled to proceed with its review without taking any further action to enable the applicant to appear before it and there is no error, let alone jurisdictional error, in the Tribunal's decision in proceeding in that manner.
The Tribunal then considered the applicant's claims and noted that it had “considerable problems with his claims.”
The Tribunal found that the applicant's claims were “extremely vague and general” and that he had provided no details of when, how or under what circumstances various alleged incidents occurred.
The Tribunal concluded that:
“In light of the lack of detail contained in the applicant's protection visa application, I am unable to make findings of fact in relation to the applicant's claims. As I am unable to make findings of fact in relation to the applicant's claims, it follows that I am unable to find that the applicant has a well-founded fear of persecution for a Convention reason arising from his claims. I am therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.”
The application filed by the applicant discloses the following grounds:
“The tribunal made his decision in bad faith.
The tribunal deprived me of the natural justice.
The tribunal denied the evidentiary proof of my claim.
The tribunal’s decision did not reflect the material facts of my claim.
The tribunal has given a decision, which was preset in the back of it’s (sic) mind.
The tribunal mixed up many facts with this decision which affected the decision.
The tribunal concentrated in particular fact, while ignored many other facts in this condition.
The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.
My judicial review application before the Federal Magistrates court (sic) is late.”
There are no particulars provided in respect of any of the grounds. They are indeed formulaic, as submitted by the first respondent, and there is nothing apparent in the conduct of the review or the face of the decision that would have any reasonable prospects of success, or of raising an arguable case for the relief claimed. And, as I have stated earlier, there is no other error on the face of the decision of the Tribunal that raises an arguable case for the relief claimed.
It was the inadequacies of the information given by the applicant to the Tribunal that led it to conclude that it was not able to be satisfied that the criteria required for refugee status referred to in ss.36 and 65 of the Act were met. There is no information upon which the Tribunal relied in making its conclusions that enlivened the Tribunal's obligations pursuant to s.424A of the Act. It is for the applicant to satisfy a decision maker such as the Tribunal that he meets the criteria required and the legislation is such that the Tribunal must refuse a protection visa unless it is so satisfied (Abebe v The Commonwealth (1999) 197 CLR 510 at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] – [16]).
In those circumstances, to grant the applicant an adjournment to obtain legal advice is of no utility.
I am also mindful of the entitlement of the first respondent to seek dismissal pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 at the first Court date where the Court is not satisfied that the application has raised an arguable case for the relief claimed.
On balance, it is my view that the interests of justice are more properly served in refusing the adjournment application on the basis that there is no utility in granting such an adjournment because the application does not raise any arguable grounds; nor is there any other identifiable error on the face of the decision capable of amounting to an arguable ground not otherwise identified by the applicant; the applicant has had time in which to obtain legal advice; and the entitlement of the first respondent to seek dismissal at the first Court date, pursuant to r.44.12 Federal Magistrates Court Rules 2001 where the Court is not satisfied that the application has raised an arguable case for the relief claimed.
In the circumstances, and for those reasons, the applicant's application for an adjournment is refused.
For the reasons referred to in paragraphs 7-19, I am not satisfied that the application ~~application~~ has raised an arguable case for the relief claimed. Accordingly, pursuant to r.44.12 of Federal Magistrates Court Rules 2001, the application is dismissed.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

I order the applicant to pay the first respondent's costs in the amount of $2500 in accordance with sch 1, pt 2, r.1(c) of the Federal Magistrates Court Rules 2001.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 108 August 2006