SZJIV v Minister for Immigration and Anor (No.2) - [2006] FMCA 1905

FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

[2006] FMCA 1905

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – whether application should be reinstated pursuant to r.16.05 of Federal Magistrates Court Rules 2001 – whether applicant’s explanation satisfactory to explain failure to appear – whether any utility in reinstating application.

Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant:

SZJIV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2592 of 2006

Judgment of:

Emmett FM

Hearing date:

6 December 2006

Date of Last Submission:

6 December 2006

Delivered at:

Sydney

Delivered on:

6 December 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:

Mr A. Cox, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2592 of 2006

SZJIV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By application, filed on 21 November 2006, the applicant seeks an order that the proceeding by him for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 24 July 2006, be reinstated, in circumstances where the proceeding was dismissed at the first directions hearing date pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001, where there was no appearance by the applicant or any person on his behalf.
In support of his application, the applicant filed an affidavit either sworn or affirmed by Chandra Jayawardena, on 21 November 2006. Mr Jayawardena states in that affidavit that he was the solicitor on the record for the applicant when the initiating application was filed on 14 September 2006, and I note that he signed the lawyer's certificate, dated 12 September 2006, annexed to that application.
Mr Jayawardena stated that, on 2 November 2006, the matter was due for directions, however he could not attend because he had “a severe pain I developed in my lower abdomen.” The affidavit goes on to state that Mr Jayawardena was under the impression that he had advised the applicant to attend the directions hearing on his own and when telephoned by the first respondent's solicitor, he stated that he had already told the applicant to attend the directions hearing.
The affidavit annexed a letter from Mr Jayawardena to another client of Mr Jayawardena’s, Mr S, dated 29 September 2006, in which he stated:
“I shall not represent you further in this matter and you are strongly advised to seek the support of a Legal Aid legal advice scheme.”
Mr Jayawardena states in his affidavit that he now realises he made a mistake because Mr S, whose initiating application Mr Jayawardena also filed, was the person with whom he had communicated and not the applicant.
I should say that the affidavit filed, or prepared and filed, by Mr Jayawardena is a handwritten document, which is not easy to read. Moreover, Mr Jayawardena was not present before the Court for cross–examination. The first respondent's solicitor expressed the view to the Court that he would have wished to have cross–examined Mr Jayawardena and objected to the reading of the affidavit. However, the solicitor for the first respondent also acknowledged that the applicant had not been informed that Mr Jayawardena would be required for cross–examination. In those circumstances, the solicitor for the first respondent did not press his objection.
The applicant gave oral evidence and was cross–examined. The applicant proffered no meaningful explanation as to why he was unable to appear save to say that he needed money and was not at the directions hearing because he could not come that day. He stated that a friend, who is supporting him, was in Melbourne at the time of the directions hearing and that he received the documents.
The applicant stated in cross examination that Mr Jayawardena had represented him at the Tribunal hearing on 11 July 2006 and as far as he was concerned Mr Jayawardena was still representing him and he had not been told otherwise.
In answer to a question put in cross–examination, “Were you relying on Mr Jayawardena to appear for you or not?”, the applicant responded, “Yes.” However, the applicant confined his oral submissions in support of his application to stating that he had money problems when he had his hearing.
I place little weight on the information provided by Mr Jayawardena in his affidavit, in circumstances where he was so careless as not even to be able to communicate with the applicant about his matter. Annexure A to his affidavit states that he no longer acts for Mr S and he meant to send a letter in the same terms as Annexure A to the applicant. If that was so, I do not understand why Mr Jayawardena would have felt that he would have attended the directions hearing, but for a severe pain in his lower abdomen, where the Court event was some six weeks after he stated he thought he told the applicant he was no longer acting.
Further, the applicant has not stated, despite being given an opportunity, that he was not aware of the directions hearing.
The applicant’s explanation of needing money on the day of the directions hearing was insufficient to explain why he did not appear.
Because of the unsatisfactory nature of the evidence relied upon by the applicant in support of his application for reinstatement, I am unable to find, on the balance of probabilities, precisely what the applicant’s explanation is for his failure to appear. For that reason, I also have regard to the utility of reinstating the applicant's application. The applicant's application discloses the following grounds:
“1. That the Tribunal exceeded its jurisdiction by concluding – “The Tribunal notes the independent evidence which suggests that the checkpoints employed during the Khalistan insurgency are long gone and it is now possible to move around India relatively easily;
2. That the Tribunal erred by concluding – The Tribunal is satisfied that the Applicant was involved in some minimal way with the SSF or that the authorities in his village had some interest in him, such interest was “very local nature”.
3. The Tribunal misdirected when concluded – “The Applicant can live in other parts of India other than in his “hometown” in the Punjabi where he claims to fear harm, and that he will obtain a meaningful remedy against risk of any persecution he may face in the Punjabi.”
The grounds are obscure in their terms and appear to relate to the Tribunal's consideration or relocation of the applicant within India. However, it is apparent from the ‘Findings and Reasons’ section of the decision that the Tribunal rejected the applicant's claims on the basis of adverse credibility findings. The Tribunal stated:
“At hearing the applicant was extremely vague and evasive in answering the Tribunal's questions. His claims of evidence are inconsistent with the independent evidence, and his claims and evidence are so implausible and far fetched as to be fanciful. The Tribunal does not find the applicant to be a credible witness or a witness of truth. In fact, given the range of inconsistencies between the applicant's evidence and the independent evidence, and the internal inconsistencies at hearing, the Tribunal cannot be satisfied that the applicant has been truthful in his claims and evidence, and cannot be satisfied that he has any claim to have a well found fear of persecution for a Convention reason.”
The Tribunal considered the applicant's claims under individual headings and rejected each of the subjective claims based on adverse credibility findings. The claim of a fear of harm by reason of being a Sikh was rejected by the Tribunal on the basis of independent information before it that disclosed that “Sikhs are no longer targeted simply for holding pro‑Khalistani views”.
There is nothing on the face of the ‘Findings and Reasons’ of the decision that would suggest that the findings and conclusions of the Tribunal were not open to it on the material before it or that the decision is otherwise affected by jurisdictional error. The applicant had no meaningful submission to make in support of the utility of reinstating his application to demonstrate that the decision of the Tribunal is affected by jurisdictional error.
In the circumstances, I am satisfied that the applicant's application for judicial review of the Tribunal's decision has no arguable case or a case with any reasonable prospects of success.
For that reason, there would be little utility in reinstating his application, even if I were persuaded that his explanation about his failure to appear was both reasonable and satisfactory.
Accordingly, the application for reinstatement, filed by the applicant on 21 November 2006, is dismissed.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in the amount of $500 in respect of time and costs involved in the preparation of opposing the motion for reinstatement. The amount sought is less than that provided by the costs schedule attached to the Federal Magistrates Court and in the circumstances, I order that the applicant pay the first respondent's costs fixed in the amount of $500.
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 20 December 2006