SZJUR v Minister for Immigration and Anor (No.3)
[2007] FMCA 1151
•9 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUR v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2007] FMCA 1151 |
| MIGRATION – Visa – protection visa. PRACTICE & PROCEDURE –– Judgment – set aside judgment – notice of motion to set aside judgment – where applicant had not attended Court on the hearing day – futility. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth) ss.65, 424, 427 |
| SZBRB v Minister for Immigration [2004] FMCA 285 SZCPY & Anor v Minister for Immigration [2004] FMCA 646 SZIPN & Anor v Minister for Immigration & Anor [2006] FMCA 1751 SZITC v Minister for Immigration & Anor [2007] FMCA 424 |
| Applicant: | SZJUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3018 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 July 2007 |
| Date of last submission: | 9 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Dooley |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Motion is denied.
The Applicant is to pay the First Respondent's costs fixed in the sum of $250.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3018 of 2006
| SZJUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is a motion by the Applicant to vacate orders made on 20th February and 18th June 2007. The Applicant seeks to reinstate his application for review of a decision of the Refugee Review Tribunal that was signed on 30th August and handed down on 20th September 2006. The circumstances are that the Applicant's substantive application was listed for Final Hearing before me in this Court on
20 February 2007. The Applicant did not attend Court and accordingly I dismissed the application.The Applicant then sought to reinstate his application by means of a Notice of Motion filed on 24th May accompanied by an affidavit. The Applicant did not explain why it had taken him nearly three months to commence the proceedings to set aside the judgment. In any event, that application was listed before me on 18th June 2007. The Applicant did not attend and accordingly I denied the motion. The Applicant has then brought another Notice of Motion returnable today.
In that application he asks that the orders made on 20th February and 18th June 2007 be vacated. There does not appear to me to be any utility in vacating the orders of 18th June in that quite clearly what the Applicant wants is to have his application for review of the Tribunal decision dealt with and he would hardly wish to argue the original Notice of Motion again because that is, in effect, what he is doing now. He did file an affidavit in which he said:
I arrived at the Court building yesterday at 11.10 am. It was just 10 minutes after the scheduled time. The last happened because the train I took to come to St James Station was late. I ran, did everything in my capacity to be in the hearing room on time. However, by the time I arrived, it was all late. The matter was dismissed again. I was told to file another notion of motion.
What the Applicant does not say in his affidavit is that he went to the wrong Court. The application and his original application as well as the application today were all listed for Hearing in Court 7B of John Maddison Tower, 88 Goulburn Street, Sydney. One does not take a train to St James Station as the most convenient way of getting to Goulburn Street. What the Applicant did was go to the Court complex in Queens Square by mistake.
This may have been an explainable error but for the fact that the Applicant attended Court on the First Court Date of his original application on 13th November 2006, in this Court in this building. He was also forwarded a set of written directions listing his application for Final Hearing at 2:00pm on 20th February 2007 in Court 7B at level 7, 88 Goulburn Street, Sydney.
The Applicant says in his affidavit, and correctly, that his original application was assigned an incorrect pseudonym by the Registry. That was changed although the Applicant said that he did not speak, read or write English and he asked one of his friends to look up the schedule of his hearing date on the internet and the friend used the incorrect pseudonym to look up the hearing schedule.
That does not explain why it took the Applicant three months after the hearing took place in his absence to bring an application to set aside. He would have received a copy of the reasons for judgment within two to three weeks at the outside. The Court must have some sympathy for people who are not legally represented and do not speak English but that is the situation in respect of most applicants for protection visas.
The Court is mindful of this fact which is why the Court sends out the directions for hearing and I also note that on that occasion a solicitor, Mr David Prince, was present to assist applicants on a pro bono basis. Mr Prince provided valuable service to the Court in that regard and it is regrettable that his services are no longer available to the Court due to his change in employment.
I think it is well established that when the Court considers an application for reinstatement the Court must look not only at the circumstances which led to the party missing the hearing but also at the merits of the substantive application where there are no prospects for success on a substantive application an application for reinstatement should be refused because reinstatement would be futile.
In this regard I follow the decisions of my colleagues, Raphael FM in SZBRB v Minister for Immigration [2004] FMCA 285 and Driver FM in SZCPY & Anor v Minister for Immigration [2004] FMCA 646. (See also SZIPN & Anor v Minister for Immigration & Anor [2006] FMCA 1751 and SZITC v Minister for Immigration & Anor [2007] FMCA 424).
Due to the need to consider not only the circumstances in which the Applicant missed the hearing but the merits of the case, I have permitted the Applicant to file an amended application, being an amended application in respect of his substantive proceedings, along with a set of written submissions which deal with both the Notice of Motion and the substantive claim. The amended application now claims the Tribunal erred in law in failing to ask the Applicant correct questions. The particulars of this claim relate to a Tribunal's finding:
The Tribunal found the applicant's evidence about collecting funds in Cambodia for the Khalistan movement vague and general. The applicant claimed that he visited people's houses whilst in Cambodia and collected funds, although he did not directly ask for money. The applicant did not provide any evidence as to who was asked to donate funds, what funds were collected or what information was given to the donors. The Tribunal finds that he has fabricated his claim about his political activity in Cambodia. The Tribunal concludes that this evidence was submitted to bolster the applicant's claims.
The Applicant goes on in his amended application to claim first that the Tribunal did not ask the Applicant any questions about who was asked to donate funds; what funds were collected or what information was given to donors therefore an adverse finding as a result of the Applicant not telling anything was not open to the Tribunal. The Applicant also claims that the Tribunal found that the Applicant had not made any claims that he intends to return to India and become a militant.
However the Applicant says that any such question was not asked by the Tribunal of the Applicant and therefore such finding is also not open to the Tribunal. It is fair to say that this ground as particularised does not establish any jurisdictional error. The ground is based on the misconception that the Tribunal has a duty to investigate and that the Tribunal cannot find that it is not satisfied about a matter unless the Tribunal has specifically sought information about that matter. That is a misconception.
It is well established that the Refugee Review Tribunal has no duty to investigate and carry out its own enquiries either under s.424 or s.427 of the Migration Act. It is also a requirement under s.65 of the Migration Act that it is for the Applicant to satisfy the Minister or in this case the Tribunal, that the Applicant meets the criteria for the appropriate visa. The Tribunal does not need evidence before it can find it is not satisfied on certain points, it is for the Applicant to provide that evidence.
In my view the Applicant has not shown that he has a satisfactory explanation for not attending the hearing and he has certainly not shown any reasonable prospects of success if his substantive application were to be reinstated. It follows, therefore, that the motion should be denied.
There is an application for costs on behalf of the First Respondent Minister. The amount sought is $250.00. It is not an unreasonably large amount, quite the reverse in fact. The Applicant said that he has the capacity to pay that by instalments of $100.00 per month, I propose to allow him three months to pay.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 July 2007
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