SZJJI v Minister for Immigration
[2008] FMCA 74
•23 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJJI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 74 |
| MIGRATION – Application to restore matter that had been dismissed pursuant to Pt 13 R13.03A(c) FMC Rules – where applicant was found not to have intended to appear – where the applicant’s prospects of success poor. |
| Migration Act 1958, s.424A |
| Randhawa v Minister for Immigration (1994) 52 FCR |
| Applicant: | SZJJI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2628 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 January 2008 |
| Date of last submission: | 23 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2628 of 2006
| SZJJI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application for review of a decision of the Refugee Review Tribunal was set down for hearing before me at 10.15 am on 16 November 2007. From my decision SZJJI v Minister for Immigration [2007] FMCA 2015 it will be seen that the applicant did not attend. Paragraph 2 of my decision reads:
“The applicant was not present when the matter was due to commence at 10.15 am. At approximately 10.25 am my associate telephoned him on the number given. The applicant advised my associate that he was sick and that he had a medical certificate but no medical certificate has been received by this court and there is no other evidence of the existence of any illness that would prevent the applicant from attending today. “
I declined to grant an adjournment, although one had not been specifically requested, and I made orders dismissing the application pursuant to Part 13, r.13.03A(c) of the Federal Magistrates Court Rules 2001 (the “Rules”).
A decision of this type is capable of being reconsidered by the court on application by the affected party. On 10 December 2007 the applicant made such an application and in support filed an affidavit. The affidavit had been sworn on 6 December 2007. It states that the applicant first became aware of the dismissal of his claim on 3 December when he received a letter from the respondent solicitors. He states at para.5:
“(5)Instead of considering the matter, the Court has proceeded to dismiss it. I assumed that the Court was considering the matter as I had filed submissions.
(6)The reason for my turning up at the Court was that I was sick. I attach a relevant medical certificate confirming this. I had faxed this to the Court on the day I obtained the medical certificate but the decision has remained.”
The medical certificate which is annexed to the affidavit is from a
Dr Aung. It states:
“This is to certify that I examined Mr [Applicant] on 18 November 2007. In my opinion [applicant] is suffering from fever and headache. [Applicant] was unfit for work up and including 15‑16/11/07.”
There are some obvious problems with this certificate, which Ms Johnson who appears on behalf of the Minister, has helpfully pointed out. It is interesting that the doctor does not state that the applicant, who was suffering from fever on 18 November, was unfit for work on that date and gives an opinion about two days upon which the applicant was not seen. I am, however, prepared to give the applicant the benefit of the doubt in relation to this certificate and accept that he attended the doctor on 18 November and that the doctor found him with fever and headache which he reasonably accepted had been present on 15 and 16 November. But this does not really avail the applicant.
The applicant gave evidence before me. He told the court that he went to work on 16 November. He works at Flemington Market and he starts his work early in the morning and usually finishes about 10 am. On this day he finished at 8 am because he was sick. He made no mention whatsoever of being sick on the 15th, the day before. Yet, in an addendum to the medical certificate of Dr Aung there is reference to the fact that he was sick on the 15th to the 18th. But, more importantly, I am unable to accept that the applicant ever had any intention of attending at the court. He was unable to explain to me why he had commenced work, which would normally finish at 10 am, on the day when he had a hearing in court at 10.15. He did not tell the court that he made arrangements with his employer to leave at 8 am on that day in order to attend court. He only said that he left at 8 am because he was feeling sick. It follows that if he was not feeling sick he would have remained.
It is true that the applicant filed a document entitled "Applicant's Outline of Submissions" on 9 November 2007. This is a reasonably sophisticated document which attempts to indicate why the Tribunal may have fallen into jurisdictional error in the manner in which it reached its decision. Although the applicant speaks some English I will make an assumption that he did not write it himself and would obviously have some difficulty in speaking to it. He may well have thought that the court would deal with the matter on the basis of a consideration of those submissions. But it is certainly not the case that he was unaware that his attendance was required because, as Ms Johnson has pointed out, a letter was sent to him, which he agreed he received prior to the hearing, pointing out that he was required to attend.
Although I am not satisfied that the applicant has adequately explained his absence from the court and although I am of the view that the applicant never really intended to come in the first place I might have been prepared to concede his application if I believed there were serious arguments to be made in support of his allegations concerning the Tribunal's falling into jurisdictional error. In his outline of submissions he claims that the Tribunal did not comply properly with s.424A of the Migration Act 1958 (the “Act”). He also claims that the Tribunal did not consider him as a member of a particular social group or as a person who could receive adequate state protection. He then proceeds to attack the Tribunal's findings concerning relocation.
The important point to note about the Tribunal's decision is that whilst it had considerable doubts about the veracity of the applicant's evidence it was prepared to accept for the purposes of a decision that he "may have more than a remote chance of being subject to persecution for a Convention reason in and around his home in Haryana state in India". In those circumstances the only real issue outstanding was the question of relocation. One of the reasons given by the applicant for his inability to relocate was his prominence in the community that worshipped the Muslim saint, Peer Baba. The Tribunal questioned the applicant concerning this and came to a well reasoned conclusion that it could not be satisfied that the applicant did have the profile that he urged upon the Tribunal.
The Tribunal dealt with the question of relocation commencing at [CB 118] and concluding at [CB 121]. I fully accept that the fact that three pages are spent upon an issue does not necessarily mean that the issue is dealt with in a manner consistent with the law. But in this particular case I cannot be satisfied that it was not. The Tribunal appears to have looked at all the matters required consistent with the decision of the Federal Court in Randhawa v Minister for Immigration (1994) 52 FCR and found it reasonable to expect the applicant to safely relocate within India.
The Tribunal then went on to deal in some detail with the applicant's response to a s.424A letter that had been provided by the Tribunal following its oral hearing. The s.424A letter consisted of substantial extracts from what was at that time the Tribunal's draft reasons so that the letter itself more than adequately provided the applicant with details of those matters which might, subject to his observations, be the reason or part of the reason for coming to an unfavourable decision.
I could not be satisfied that the applicant's arguments concerning the s.424a letter had any merit.
The applicant in his submissions argued that the Tribunal had not properly complied with s.424A in relation to certain independent country information. This argument is untenable in view of the fact that the relevant information is subject to an exclusion from the provisions of that section.
In all the circumstances I am not prepared to reopen this matter and I dismiss the application and order that the applicant pay the first respondent's costs which I assess in the sum of $1,000.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 January 2008
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