SZLJA v Minister for Immigration

[2007] FMCA 1983

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1983

MIGRATION – Dismissal for non-attendance of application – application for reinstatement – no medical report provided to demonstrate that applicant unable to attend – exceptional reasons not shown – application would have to show some prospect of success to be reinstated – not shown.

Migration Act 1958 (Cth), ss.424A

Federal Magistrates Court Rules 2001, r.13.03A

SZBEW v Minister for Immigration [2005] FMCA 999
AZIZ v Minister for Immigration & Anor [2007] FMCA 221
Ousmand v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 735
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Applicant: SZLJA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2943 of 2007

Judgment of: Turner FM

Hearing date: 22 November 2007

Date of last submission: 22 November 2007

Delivered at: Sydney

Delivered on: 22 November 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B. Rayment of Sparke Helmore

ORDERS

1. The application for reinstatement is dismissed.

2. The applicant is to pay the costs of the first respondent fixed in the amount of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2943 of 2007

SZLJA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for First Court Date on 23 October 2007. On that day the applicant failed to attend and the matter was accordingly dismissed pursuant to r.13.03A. The Court also ordered that the applicant pay the first respondent’s costs fixed in the sum of $500.

2. The applicant filed a Notice of Motion on 24 October 2007, seeking that the orders of 23 October 2007 be set aside. In his supporting affidavit, the applicant states:

   ·That he did not appear because he was sick and unfit;

   ·That he asked his roommate to attend Court and seek an adjournment;

   ·That his roommate arrived at Court at 10:15am, and was told by a staff member that the application had been dismissed.

   No attempt was made by the applicant to contact the Court before the hearing, nor is there a medical report to show that the applicant could not attend Court on 23 October 2007. The Court does not accept that the applicant was prevented from attending the hearing because of medical reasons. In any event, the applicant now says that he was not sick. According to the applicant’s evidence today, the applicant’s migration agent did not give him enough notice of the time and date of the hearing.

3. The applicant stated to the Court earlier that it was his signature on the application. The applicant now says that the signature on the application is not his. The applicant stated that he went to the Court to file the application with his migration agent. It is clear from the application that at the time of filing, the matter was set down for hearing at 9.30am on Tuesday, 23 October 2007. The Court does not therefore accept that the applicant did not become aware of the time and date for hearing until it was too late to attend. The applicant had one day short of one month’s notice of when the hearing was to occur.

4. The Court does not accept that the reason the applicant did not attend the hearing was that his agent did not give him enough notice. There is no record on the Court documents of an agent acting for the applicant. The Court does not find the applicant to be a witness of truth. The Court refers to the decision of Raphael FM in SZBEW v Minister for Immigration [2005] FMCA 999 at [6] as follows:

   The reinstatement of an application following dismissal for non appearance should not occur as a matter of course. The authorities indicate that exceptional reasons need to be advanced. I would need at least to be satisfied that there was a sufficient explanation for the non attendance of the applicant at court on 15 February 2005. I would also need to be satisfied that there would be some useful purpose to be served in reinstating the application.

   His Honour refused to reinstate the application in that matter.

5. The Court refers also to the decision in AZIZ v Minister for Immigration & Anor [2007] FMCA 221, where Smith FM refused to reinstate an application because there was no medical evidence that the applicant was incapacitated from attending Court, nor was there any contact with the Court to explain his absence.

6. In the present case, there is no medical report justifying the applicant’s non‑appearance. The matter was listed at 9.30am and his friend is said to have attended at 10.15am. The applicant was with his migration agent at the time the application was filed. The applicant therefore had notice of when the hearing would occur. No attempt was made to contact the Court prior to the hearing to say the applicant would not attend. The Court finds that exceptional reasons for reinstatement have not been advanced.

7. In addition, the application would have to show some prospects of success if the application is to be reinstated: Ousmand v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 735 per Phipps FM at [5]. It is clear from the decision attached to the affidavit of the applicant that the Tribunal did not believe much of the applicant’s evidence. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

   The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.

8. The applicant’s application has two grounds: first, a complaint that the Tribunal rejected his claims because of his limited knowledge of Falun Gong, and second, that the Tribunal failed to consider evidence of his limited education. The Tribunal noted in its Decision Record (“DR”) that the applicant claimed to have 12 years of education in this protection visa application, but at the hearing before the Tribunal the applicant stated that he had only 2 years of education (DR 6). The applicant stated he did not know why his application stated 12 years. The Tribunal was, therefore, aware that the applicant was saying that he had only two years of education. The Tribunal went on to find that the applicant had attended Falun Gong sessions in Australia only. The Tribunal was entitled to reach that conclusion on the material before it: Lee (ante).

9. Ground 1 seeks a review of the merits as to the applicant’s limited knowledge of Falun Gong. The Tribunal was entitled to reach the conclusion it did on the material before it. Findings of fact by the Tribunal are not subject to review, and the Tribunal is entitled to accept or reject the evidence before it: Lee (ante). The Court find that ground 1 has no reasonable prospect of success.

10. Ground 2 alleges a breach of s.424A without giving particulars. It is clear from the Tribunal’s reasons that it rejected many of the applicant’s claims on the basis of the evidence he gave to the Tribunal. Such evidence is subject to the exception in s.424A(3)(b). Other than the rejection of much of the evidence, there are no other reasons for the decision to dismiss the application. Therefore, there was no information that should have been the subject of disclosure under s.424A. Ground 2 has no reasonable prospect of success.

11. The Court finds there will be no useful purpose served by reinstating the application. The application for reinstatement is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate:  M Giang

Date:  27 November 2007