SZKFU v Minister for Immigration
[2007] FMCA 714
•11 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 714 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| Applicant: | SZKFU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG552 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 11 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Mafessanti Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG552 of 2007
| SZKFU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was signed on 2 January 2007 and was handed down on 23 January 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Malaysia and had made claims of ethnic persecution. The claim is based upon his Chinese ethnicity. The applicant was invited to attend a hearing before the Tribunal but he did not do so. The circumstances are set out in the Tribunal reasons at page 59 of the court book which I received in evidence:
[The] Tribunal wrote to the applicant on 26 October 2006 at the address he authorised correspondence about his application to be sent, advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 30 November 2006. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his case without further notice. The Tribunal again wrote to the applicant on 9 November 2006 advising that the hearing date had been rescheduled to 15 December 2006. The Tribunal received no response from the applicant.
At 10am on the date of the scheduled hearing, the Tribunal released the interpreter as the applicant failed to appear. As at the date this decision was signed, the applicant has not subsequently contacted the [T]ribunal to explain his failure to attend the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal went on to find that, as the applicant did not attend the hearing, the Tribunal had no opportunity to explore details of his claims or test the veracity of them. The Tribunal remained unsatisfied that the applicant qualified for a protection visa and therefore affirmed the decision of the delegate.
These proceedings began with a show cause application filed on 16 February 2007. The applicant asserts in that application that he was actually notified of the Tribunal decision on 23 January 2007. I find that the application was filed within time.
In the application the applicant asserts that he did not attend the Tribunal hearing because he was sick. He complains that he could not write to the Tribunal and missed the chance to attend and give evidence and present arguments. The application is supported by an affidavit which merely annexes the decision of the Tribunal. The applicant does not in any coherent way assert any jurisdictional error by the Tribunal.
When the matter first came before me on 13 March 2007 I made orders permitting the filing of an amended application or additional material. Nothing further has been filed by the applicant. He denied receipt of the court book which was filed on 22 March 2007. I accept, however, from exhibit R1 that the court book was served by post on the applicant to his address for service on 23 March 2007. The applicant told me that that address is occupied by a friend who is responsible for the collection and delivery of his mail. The Minister’s solicitor told me that the letter was not returned. The applicant agreed that it was possible that the court book may be with his friend.
I took the applicant to the Tribunal decision and the two invitation letters which appear on pages 44 and 45 and 47 and 48 of the court book. The applicant told me that following consultation with a legal adviser he now understood that his failure to attend a Tribunal hearing was his own fault. He said that he had relied upon his friend to advise him of the hearing invitations and to deal with any response. It is apparent that at least the latter did not occur. The Tribunal met its statutory obligations to invite the applicant to a hearing. When he did not respond and did not attend the hearing to which he was invited the Tribunal was entitled to proceed in his absence. The findings then made by the Tribunal were open to it on the material before it.
There is no arguable case of jurisdictional error. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $1,800. That is substantially less than the scale amount under the court rules. I accept that costs of not less than $1,800 have been reasonably and properly incurred on behalf of the Minister on a party and party basis. The applicant inquired about the possibility of paying costs by instalments but made no other submissions. 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 $1,800.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 May 2007
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