SZIZM v Minister for Immigration - [2006] FMCA 1202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIZM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1202

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application for reinstatement of judicial review application following dismissal for non appearance – no serious issue to be tried – reinstatement application dismissed.

Migration Act 1958 (Cth), s.477
Migration Litigation Reform Act 2005 (Cth)

Applicant:

SZIZM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1838 of 2006

Judgment of:

Driver FM

Hearing date:

17 August 2006

Delivered at:

Sydney

Delivered on:

17 August 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms C Gray
Sparke Helmore

INTERLOCUTORY ORDERS

The Court directs that the application for reinstatement filed on 24 July 2006 be amended by added the “Minister for Immigration and Multicultural Affairs” as the first respondent and the “Refugee Review Tribunal” as the second respondent.
The application for reinstatement filed on 24 July 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 $1,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1838 of 2006

SZIZM

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 24 July 2006. The application seeks to set aside orders I made on 18 July 2006. On that day I dismissed a judicial review application on account of the applicant’s failure to attend the first court date on the application and also because I considered the application to be incompetent. I also made a costs order against the applicant.
The present reinstatement application is supported by two affidavits made by the applicant and filed on 24 July 2006 and 11 August 2006. I also have regard to the applicant’s affidavit accompanying his judicial review application on 3 June 2006 and that application. In addition, I received as evidence a court book, filed on 9 August 2006 and the affidavit of Catherine Jane Gray, filed on 14 July 2006. As I explained to the applicant during oral argument, the issues to be resolved on the reinstatement application are, first, whether the applicant has advanced a sufficient explanation for his non-attendance at court on 18 July 2006. The second issue is whether the judicial review application, filed on 30 June 2006, raises a serious question to be tried. There are two parts to that second issue. The first is whether the application is competent. On 18 July 2006 I found that it was not, but as the order was made in the absence of the applicant, it is necessary to revisit that question on the basis of the presently available evidence. Secondly, there is an issue of whether there is any arguable jurisdictional error in the decision of the RRT.
In addition to the evidence I received, the applicant sought to rely on an affidavit by a woman called Qi Wu. The Minister objected to the receipt of that affidavit as it had not been served and the deponent was unavailable for cross examination. I declined to receive the affidavit. The deponent claimed to have been responsible for the filing of the judicial review application. To that extent, the affidavit was important. However, the deponent also advanced a highly implausible reason for being unavailable for the court hearing today. She claimed that she had to go to China at the time of this hearing for what appears to be a routine medical check-up. She claimed that this was necessary so that she could find a doctor who spoke Chinese. If the deponent was asserting that there are no doctors in Australia who speak Chinese, the proposition is ludicrous. In addition, the affidavit is in English and there is no translation certificate.
In his affidavits the applicant seeks to explain why he failed to attend Court on 18 July 2006. His explanation is essentially that he and those assisting him did not understand that the return date of the application was written on it. The applicant asserts that he was told by someone assisting him to expect a letter from the Court advising when the first court date would be. The applicant was not required for cross-examination on his affidavits. I nevertheless have difficulty with all of the applicant’s affidavit evidence. That is, in part, because the affidavits are in English and there is no translation certificate. The applicant contradicted some of the detail in his affidavits from the bar table. He also told me that the affidavits had not been read back to him so that he could satisfy himself that the contents were true and complete. Notwithstanding my doubts, I accept that it is plausible that someone with no legal experience and whose first language is not English may misunderstand the significance of words written on an application form. I also accept that confusion may have arisen because of incompetent advice given to the applicant as to what procedure would be followed. Notwithstanding my doubts about the applicant’s evidence I am willing to accept that he has sufficiently explained his failure to attend court on 18 July 2006.
The other question is whether the judicial review application raises a serious question to be tried. I find that it does not. First, I confirm the finding I made on 18 July 2006, that the application is incompetent. The applicant asserts that he did not receive a copy of the RRT decision he seeks to review until June 2006. The decision was made on 11 December 1998. The court book discloses that a copy of the decision was sent to the applicant at his nominated postal address and to his migration agent by letter dated 14 December 1998. The applicant denies receipt of that letter and says that the postal address was wrong. He says that he had advised his agent of a change of address. However, the address used by the RRT was the address nominated on the review application form completed by the applicant (court book, page 50) and there is no evidence of any change of address being notified to the RRT. The applicant does not know whether his migration agent received a copy of the RRT decision. At least, he says he does not know. However, he does say that around the time the notification letter was sent he was asked by his migration agent to attend his office to sign some documents.
The applicant refers in his affidavit filed on 24 July 2006, at paragraph 6, to the agent Harry Huang telling him at a conference in late 1998 that he had prepared a submission on his behalf and that he was asked to sign it. He says that he signed the papers. The applicant confirmed from the bar table that the signature as appearing on the bottom of each page of annexure A to the affidavit of Catherine Gray, is his. I find, on the balance of probabilities, that this was the submission referred to by the applicant in his affidavit. That submission refers to the decision of the RRT which had at that time been made.
I think it extremely likely that the applicant and his migration agent were aware of the RRT decision and had probably seen it when that letter was written. I find that, on the balance of probabilities, the applicant had been notified of the RRT decision by 20 December 1998. On that basis, the application is incompetent because more than 84 days have passed since 1 December 2005, when the applicant is taken to have been notified of the decision, pursuant to s.477 of the Migration Act 1958 (Cth) and item 42 in Part 2 of schedule 1 to the Migration Litigation Reform Act 2005 (Cth).
Even if I were wrong in that finding, there is no arguable case of jurisdictional error advanced in the judicial review application. The applicant was invited to a hearing before the RRT by a letter dated 28 July 1998 (court book, pages 60 and 61). The RRT received no response to that invitation and elected to proceed in the applicant’s absence (court book, page 67). The applicant denies receipt of the hearing invitation and complains that because he was unaware of it he missed the opportunity to attend a hearing. Even if that were true, the RRT, in my view, met its legal obligations in sending its hearing invitation to the address nominated by the applicant and to his agent.
The applicant asserts fault on the part of his agent in not drawing the hearing invitation to his attention. However, if the agent was at fault that was not the responsibility of the RRT. In the absence of further information from the applicant, the RRT was left with no option but to affirm the decision under review. The scant material before the RRT was simply insufficient to satisfy it that the applicant had a well‑founded fear of persecution within the meaning of the Refugees Convention.
I see no error in the approach taken by the RRT let alone any jurisdictional error. For these reasons I conclude that there is no serious issue to be tried and accordingly, I dismiss the reinstatement application filed on 24 July 2006.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $1,300. I note that the Minister was represented on two occasions on the reinstatement application. I required the preparation of a court book in order to deal with the application. Ms Gray, for the Minister, also prepared an affidavit and dealt with the applicant’s evidence. I am satisfied that the claim of $1,300 is fair and reasonable on a party and party basis. The applicant was concerned about the amount and his capacity to pay. However, his impecuniosity is not a reason for the Court to refrain from making a costs order.
I will direct that the application be amended by adding the Minister as the first respondent and the RRT as the second respondent. In relation to costs, I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,300.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 August 2006