SZKHR v Minister for Immigration
[2009] FMCA 200
•5 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 200 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of failure of the applicant to appear. |
| Federal Magistrates Court Rules 2001, rr.13.03C(1)(c); 16.05 Migration Act 1958 (Cth), ss.425; 426A |
| First Applicant: | SZKHR |
| Second Applicant: | SZKHS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2427 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 March 2009 |
| Date of Last Submission: | 5 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2009 |
REPRESENTATION
| No appearance by or on behalf of the Applicants |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms E. Baggett, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2427 of 2008
| SZKHR |
First Applicant
| SZKHS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order that the application filed on 18 September 2008 be dismissed pursuant to r.1303C(1)(c) of the Federal Magistrates Court Rules2001 by reason of the failure of the applicants to appear at today's scheduled hearing.
On 8 October 2008 Mr Newman from Newman and Associates filed a notice of appearance on behalf of the applicants.
On 13 October 2008 Mr Newman's appearance was mentioned by consent by Ms Nandagopal on behalf of the first respondent at the first court date. On that occasion the matter was set down for final hearing today at 10.15am and various directions made for the filing of an amended application and any further evidence. The directions also contained the notation that in the event there was no appearance by the applicants at the hearing, that the application may be dismissed in their absence without further notice.
On 31 October 2008 an amended application was filed by Newman and Associates on behalf of the applicants in the following terms:
“A. DETAILS OF CLAIMS
1. The applicants are Indian nationals.
2. The applicants entered Australia on 26 April 2006 and applied for a protection visa on 5 June 2006.
3. The main applicant claimed that he had tried to mediate between opposing Hindu and Muslim groups and although not Muslim himself he was seen by extremists to be allying himself to their cause causing him to suffer persecution at their hands leading him to fleeing to Australia with his wife.
4. On 24 June 2008 the Tribunal conducted a hearing at which the applicants were not present and the Tribunal held that mere claims do not establish their genuineness and that as they were not present the claims could not be tested and must fail for in the Tribunal’s view they did not engage the Convention obligations on Australia’s part. The Tribunal went on to say that at paragraph 24 “The Applicants were represented in relation to the review by their migration agent”.
Decision details
The decision of Andrew Mullin, the Presiding Member of the Refugee Review Tribunal made on 24 June 2008
Sections 91R, 91S of the Migration Act 1958 under which the decision was made:
B. The Tribunal’s errors:
1. The Tribunal erred in law and failed to exercise its jurisdiction by applying incorrect facts and ignoring relevant material as follows by stating at paragraph 24 that “The Applicants were represented in relation to the review by their migration agent”. Such was not the case and such the Tribunal fell jurisdictional error.
PARTICULARS
The tribunal, without checking the facts, (and indeed was mistaken about them) seemed to have believed that the Applicants had appointed a migration agent to act for them and had authorised the Second Respondent to communicate with him solely and exclusively. No such authority had been given.
The applicant claims:
1. The order nisi be made absolute
2. A write of mandamus requiring the Tribunal to determine the application according to law.
3. A writ of prohibition preventing the 2nd Respondent from taking any action upon the said decision.
4. A remittal of the matter to the Second Respondent differently constituted
5. Costs.”
On 25 February 2009, submissions were filed by Newman and Associates on behalf of the applicants. Those submissions are as follows:
“1. The respondent’s submissions particularly para 13 contain the nub of the matter before the Court to wit: “… …if the applicant gives written notice of the name and address of another person authorised by the applicant to do things on behalf of the applicant that consist of or include receiving documents in connection with the review (emphasis added… … … … …”. There was a review on foot viz a review application before the Refugee Review Tribunal but that review had concluded on 23 January 2007 (the date of the decision under review) and between that date and the date of the authority (1 March 2007) reproduced in the supplementary court book there was simply no other matter before any review authority. Further, the authority at Part B speaks of ‘About your application’ to which the applicant in answer to Q 3 Do you have any applications currently being processed? wrote ‘No’.
2. It is quite clear by means of inferences reasonably drawn that the authority allowed for the collection of the earlier Tribunal’s decision and for nothing else for on that date there was nothing else to be done that could be done.”
This is a matter where neither of the applicants appeared at the scheduled hearing of the Refugee Review Tribunal (“the Tribunal”) as a result of which the Tribunal satisfied itself that its obligations under s.425 of the Migration Act 1958 (Cth) (“the Act”) had been met in inviting the applicants to come to a hearing to give evidence and present arguments.
Accordingly, the Tribunal, pursuant to its power under s.426A of the Act, proceeded to make its decision on the review without taking any further action to allow the applicants to appear before it. The Tribunal noted that a letter inviting the applicants to come to a hearing to give oral evidence and present arguments was sent to the applicants’ authorised recipient in accordance with the statutory regime. The Tribunal had regard to the claims made by the applicants in support of their application for protection visas and the further submissions received by the Tribunal. However, ultimately, the Tribunal was not satisfied that the applicants met the criteria required for being refugees and accordingly affirmed the decision under review.
It is clear from the supplementary Court Book, filed on 30 October 2008, which, together with the Court Book filed on 15 October 2008, is marked exhibit 1R, that the applicants appointed a migration agent to act on their behalf and to assist them with their review before the Tribunal. The steps taken by the Tribunal in the conduct of its review would otherwise appear to be in accordance with the statutory regime.
It is not clear to me what the argument of the applicants is that is raised by Mr Newman in his written submissions.
I note that it is now 10.55am. The hearing was scheduled to commence at 10.15am. There has been no appearance by the applicants or by Mr Newman or any other person on behalf of the applicants. At approximately 10.20am my Associate left a message on the landline of Newman and Associates informing Mr Newman of this morning's hearing and asking him to ring urgently.
Mr Newman also provided a mobile telephone number on the notice of appearance filed on 8 October 2008, however, that number had a message that the mobile is currently unavailable and to try again later. I note that Newman and Associates offices are at 77 William Street, Sydney which is a reasonably short walk from this Courtroom. There has been no communication, as I said, received either from my Chambers or from the first respondent or the first respondent's lawyers from Mr Newman or the applicants seeking an adjournment of today's hearing.
I am informed by Mr Smith of counsel that attempts to reach Mr Newman this morning by the first respondent's solicitors have also been unsuccessful.
In the circumstances, I am satisfied that the applicants and Mr Newman were aware of today's hearing and for whatever reason have chosen not to attend. I note that there has been no notice of ceasing to act filed by Newman and Associates, which, of course, is of great concern to the Court.
However, I have expressed the difficulties that I presently have with the grounds raised in the amended application and I also have regard to the fact that under r.16.05 of the Federal Magistrates Court Rules the applicant is able to make an application to set aside the orders made today if the Court is satisfied that there are grounds to do so. In the circumstances, in my view, it is appropriate that the orders sought by the first respondent be made.
Accordingly, the proceeding before the Court, commenced by way of application filed 18 September 2008, is dismissed with costs pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicants to appear at today’s hearing. The first respondent is also directed to notify the applicants forthwith of the orders made today, together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001.
ORDERS DELIVERED
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 16 March 2009
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