SZJOL v Minister for Immigration

[2007] FMCA 1273

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1273

MIGRATION – Review of decision by Refugee Review Tribunal.

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

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

First Applicant: SZJOL

Second Applicant: SZJOM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3100 of 2006

Judgment of: Emmett FM

Hearing date: 31 July 2007

Date of last submission: 31 July 2007

Delivered at: Sydney

Delivered on: 31 July 2007

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent: Ms L. Gazi, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3100 of 2006

SZJOL

First Applicant

SZJOM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 26 June 2007, this Court made an order dismissing the proceeding commenced by way of application filed on, 24 October 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 September 2006.

2. The proceeding was dismissed pursuant to r.13.03(A)(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to appear at the scheduled hearing on that day.

3. In making the Orders dated, 26 June 2007, I provided extempore reasons, a copy of which has been provided to each party.

4. The applicant filed an application seeking reinstatement on 6 July 2007, that application being supported by an affidavit sworn by the applicant on 5 July 2007 in the following terms:

   “1. I was seek (sic) and unable to attend my hearing on the scheduled date. I faxed my medical certificate prior to my hearing date on the 26 June 2007. The Honourable judge did not consider my medical certificate and dismissed my application without any formal opportunity to submit my legal argument or seek legal advice from my polit (sic) scheme (sic) counsel.

   2. I enclosed herewith my medical certificate with my affidavit”

5. The applicant appeared before this Court this morning, and whilst he is unrepresented he had the assistance of an interpreter.  The applicant confirmed to this Court that he relied upon the terms of that affidavit. 

6. It was explained to the applicant by me that there were two aspects that the Court would need to consider in relation to his application. The first being the reasonableness of his explanation for his failure to appear on the last occasion, and the second being that there was some utility in setting aside the Order made by this Court on 26 July 2007 dismissing the proceedings.

7. The applicant had nothing further to say in support of his application about his explanation.  The applicant informed this Court that he had a pain in his back at the time of the hearing.  However, the applicant has provided no further evidence to this Court in respect of any medical condition suffered by him on that occasion, and I have already considered the evidence that he did provide to this Court in the reasons for judgment referred to above, given by me on 26 June 2007.

8. In the circumstances, I confirm the conclusion made by me in paragraph 6 of those reasons.  In those reasons and I do not accept the applicant's explanation for his failure to appear on the last occasion as reasonable in all the circumstances.

RECORDED :  NOT TRANSCRIBED

1. I have further considered the utility of any reinstatement and am not persuaded there is any utility in respect of any reasonable or arguable case disclosed in the applicant's amended application filed on 11 December 2006.

2. The amended application essentially makes three complaints about the Tribunal decision. 

3. The first complaint refers to disagreement with a finding made by the Tribunal.  The first respondent tendered the bundle of relevant documents marked Exhibit 1R, and a fair reading of the Tribunal's decision suggests that the finding complained about was open to the Tribunal on the evidence before it, and for which it provided reasons.  Even if that were not the case, the Tribunal does not commit jurisdictional error simply by making an error of fact and, I refer to Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [146].

4. The applicant also complains that the Tribunal failed to have regard to independent information.  There is no error simply by that fact alone.  The allegation is otherwise unsupported by particulars, and it is not capable in its bare assertion alone of sustaining an allegation of jurisdictional error.

5. The third ground raised by the applicant in his amended application is an allegation that the Tribunal was biased.  Again, this is an allegation that is unsupported by evidence and would at least require the provision of a transcript of the hearing of the Tribunal.

6. Orders were made by this Court on 12 December 2006 directing the applicant to file and serve any evidence, including any transcript, by 20 March 2007.  There has been no evidence filed by or on behalf of the applicant in accordance with that direction.  An allegation of bias is a serious allegation, and the bare assertion of bias is insufficient to sustain a finding of jurisdictional error on the part of the Tribunal.

7. In the circumstances I am not persuaded that the applicant has raised any ground with reasonable prospects of success, or any arguable ground in respect of his contention that the decision of the Tribunal is affected by jurisdictional error.

8. In the circumstances the applicant's application filed on, 6 July 2007 is dismissed.

9. I order that the applicants pay the costs of the first respondent fixed in an amount of $450.

RECORDED :  NOT TRANSCRIBED

1. In addition to the reasons I have given, I will also note that the applicant confirmed that he appeared on behalf of the second named applicant who is his wife.  She has otherwise not appeared before this Court today, nor did she appear on the last occasion on 26 June 2007 when the matter was set down for hearing.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  3 August 2007