SZKHM v Minister for Immigration and Anor (No.2)

[2007] FMCA 1161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKHM v MINISTER FOR IMMIGRATION & ANOR (No.2) [2007] FMCA 1161

MIGRATION – Review of Refugee Review Tribunal decision – application for reinstatement of show cause application that had been dismissed on account of the applicant’s non appearance – insufficient explanation for that non-appearance – no serious issue to be tried.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.422B, 425, 425A, 426A

Minister for Immigration v Guo & Anor (1997) 191 CLR 559
SZECI v Minister for Immigration [2005] FCA 1201
SZKHM v Minister for Immigration [2007] FMCA 1055

Applicant: SZKHM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG743 of 2007

Judgment of: Driver FM

Hearing date: 19 July 2007

Delivered at: Sydney

Delivered on: 19 July 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Kantaria
Clayton Utz

INTERLOCUTORY ORDERS

1. The application for reinstatement filed on 29 June 2007 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the reinstatement application, fixed in the sum of $250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG743 of 2007

SZKHM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a reinstatement application filed on 29 June 2007 together with a short supporting affidavit by the applicant. The reinstatement application seeks to set aside orders made by me in the substantive proceedings on 29 June 2007. Relevantly, I ordered that the substantive application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I also made a costs order against the applicant. I gave reasons for those orders: SZKHM v Ministerfor Immigration [2007] FMCA 1055.

2. The applicant says that she missed the hearing of her substantive application at 12.15pm on 29 June 2007 because she did not notice that the time for the hearing changed from 3.15pm to 12.15pm.  She says that she arrived at the Court at 1.20pm on 29 June 2007 but had missed the hearing.  Those assertions are contained in an affidavit filed on

   
   

   29 June 2007.  I received the affidavit.  The applicant was not required for cross-examination.

3. The other evidence I have before me is a court book filed in the substantive proceedings on 19 April 2007 and three exhibits tendered on behalf of the Minister on 29 June 2007.  Exhibit R1 is a letter dated 15 May 2007 from the Minister's solicitors to the applicant at her address for service and her residential address.  That letter informs the applicant of the outcome of a directions hearing conducted on 15 May 2007 at 9.30am.  The applicant failed to attend that directions hearing and the purpose of the letter was to inform the applicant of the orders made by me at the directions hearing.  Attached to the letter is a copy of my orders listing the matter for a final hearing at 12.15pm on 29 June 2007.  Unfortunately, the letter in its third paragraph nominates the time as 12.30pm on 29 June 2007.  Exhibit R2 is a letter to the Minister's solicitors from the applicant's panel adviser dated 21 June 2007.  The panel adviser states that the applicant had confirmed to her on 21 June 2007 that her postal address was correct and that the applicant had received a letter from the Court dated 2 May 2007 which advised the applicant of the directions hearing on 15 May 2007, and that the applicant would attend Court for the hearing on 29 June 2007. Exhibit C1 is a letter in similar terms from the applicant's panel adviser to the Court dated 21 June 2007. 

4. The applicant confirmed that she had had a discussion with her panel adviser about the Court hearing on 29 June 2007 but said that she remained confused about the time.  In my view, the applicant should have been aware that she needed to attend Court at 12.15pm on 29 June 2007 for the final hearing of her application.  I cannot understand her failure to attend the directions hearing on 15 May 2007 given that she had received the Court's letter of 2 May 2007 informing her of that directions hearing.  I find that she was aware of my orders listing the matter for hearing at 12.15pm on 29 June 2007.

5. It is unfortunate that the Minister's letter (exhibit R1) incorrectly informed the applicant that the final hearing was at 12.30pm.  I note, however, from the transcript of the hearing conducted on that day, that the hearing was adjourned at 12.32pm by which time the applicant should have been in attendance if she had thought the hearing was to commence at 12.30pm.  The applicant claims that she attended at 1.20pm on 29 June 2007 in the expectation that her hearing was to be at 3.15pm, which was the time that her case had earlier been listed for a callover in the docket of a different Federal Magistrate.  While that is possible, it is equally possible that the applicant was simply taking advantage of the change in time in order to present an excuse for her non-attendance.  On balance, having regard to the several occasions upon which the applicant was told of court fixtures on 15 May 2007 and on 29 June 2007, her discussion with her panel adviser when the situation appears to have been explained to her and her failure to attend either the directions hearing or the final hearing, I am not satisfied that the applicant has advanced a sufficient explanation for her non‑attendance at court at 12.15pm on 29 June 2007. 

6. Even if I were wrong in that finding, however, the applicant would still need to satisfy me that there was a serious question to be tried in the substantive proceedings.  The proceedings began with a show cause application filed on 5 March 2007.  That application appears to have been filed within time.  That application asserts a denial of procedural fairness, that there was no evidence to justify the decision of the Refugee Review Tribunal (“the Tribunal”) and that the Tribunal should consider more about the current and previous situation in Indonesia. 

7. The applicant filed an amended application on 7 May 2007 in which she asserts that the Tribunal failed to assess the possibility of the applicant being prosecuted if she returned to Indonesia.  Secondly, the amended application asserts that the Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the “test”.

8. The background circumstances in relation to the applicant's protection visa claims and the Tribunal decision are set out in written submissions filed on behalf of the Minister in the substantive proceedings on 29 June 2007.  I confirmed this morning that the applicant had received those submissions.  I adopt as background for the purposes of this judgment paragraphs 2 to 5 of those written submissions:

   The applicants are a mother (‘the applicant’) and two daughters, all citizens of Indonesia, who arrived in Australia on 19 August 2006 and applied for protection visas on 8 September 2006.  In her application for a protection visa, the applicant claimed that her husband was a low ranking official in the Balinese District Government and that his superior was corrupt.  She further claimed that her husband had been killed in what she was told was a traffic accident, and that she feared a similar fate from unknown assassins if she were to return to her country of origin.  The daughter’s claims were dependant on the success of the applicant’s claims.

   The applicant was invited to a hearing (court book ("CB") 67) and responded that she would attend (CB 62), however she did not do so and no explanation was provided for her non attendance at the hearing.

   The Tribunal proceeded to determine the application for review in the applicant’s absence.  The Tribunal was unable to discern a claim, because of the insufficient details provided (CB 146.6) and was thus unable to ascertain whether there was a real chance of serious harm amounting to persecution.

   Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution and affirmed the decision under review.

9. Simply put, the applicant failed to attend a hearing before the Tribunal to which she was invited and to which she told the Tribunal she would attend.  The Tribunal did not have sufficient material in order to make a favourable decision on the papers which is why the applicant was invited to a hearing.  At the time of the hearing the Tribunal still had insufficient material in order to make a favourable decision.  The decision of the Tribunal is an unremarkable one in the circumstances.  I agree with and adopt for the purposes of this judgment paragraphs 7 to 10 of the Minister's submissions, which are directed to the grounds in the original application:

   In relation to ground 1, s.422B of the Migration Act 1958 (Cth) (‘the Act’) provides that the obligations under Part 7 Division 4 are an exhaustive statement of the obligation to accord the applicant procedural fairness. In this regard, the Tribunal complied with ss.425 and 425A of the Act (CB 67). The applicant failed to appear, so the Tribunal was entitled to proceed to make a decision pursuant to s.426A of the Act.

   The reason for the Tribunal’s decision was a lack of satisfaction, based on insufficient detail provided by the applicant.  The Tribunal could only proceed on the material and information before it.  The absence of information of any specificity or persuasive character may be said to be the reason for the Tribunal’s decision and it has been held that no error arises in such circumstances: SZECI v Minister for Immigration [2005] FCA 1201 at [24] per Allsop J. It is also well established that it is for the applicant to make her case: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J.

   In relation to ground 2, this is not a case where a finding negative to the applicant was made, so the question of whether there was evidence for a finding does not arise. Rather, this was a case where the Tribunal member was simply not in a position to reach the requisite state of satisfaction in circumstances where the Tribunal considered the material before it to be lacking in detail and containing vague statements. Indeed, there was insufficient information for the Tribunal member to discern whether there was even a claim under the Refugees Convention (as defined in the Act), let alone whether such a claim was well-founded.

   Similarly, in relation to ground 3, the consideration of independent country information did not arise in the present case because the Tribunal member was unable to progress past the initial stage of ascertaining the applicant’s claim. To the extent that the applicant complains that there was a failure to seek information about the situation in Indonesia, there is no obligation on the Tribunal to do so under the Act.

10. There is no substance to either of the grounds in the amended application.  The Tribunal considered the applicant's claims as best it could on the limited material before it.  The second ground is meaningless in the absence of particulars. 

11. I find that there is no serious question to be tried in the substantive proceedings.  Accordingly, I dismiss the reinstatement application

12. Costs should follow the event in this matter.  The Minister seeks a modest costs award of $250 in respect of the reinstatement application.  The applicant did not wish to be heard on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the reinstatement application, fixed in the sum of $250.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 July 2007