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

[2008] FMCA 1445

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRP v MINISTER FOR IMMIGRATION & ANOR (No.2) [2008] FMCA 1445

MIGRATION – Refugee Review Tribunal – practice and procedure – whether the applicant’s explanation that he forgot the hearing date is a satisfactory explanation for his failure to appear at the scheduled hearing – whether the applicant’s explanation that he was not represented by a solicitor is a satisfactory explanation – whether the applicant had any satisfactory explanation for his failure to appear at the hearing – whether the grounds of the application for judicial review disclose any arguable case.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24

Applicant: SZLRP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3640 of 2007

Judgment of: Emmett FM

Hearing date: 14 October 2008

Date of Last Submission: 14 October 2008

Delivered at: Sydney

Delivered on: 14 October 2008

REPRESENTATION

Applicant appeared in person assisted by a Hindi interpreter

Solicitors for the Respondent: Ms A. Nanson, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3640 of 2007

SZLRP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant seeks orders from this Court setting aside Orders made by this Court on 21 July 2008, dismissing the application filed on 26 November 2007, by reason of the applicant’s failure to appear at the scheduled hearing of his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 October 2007. 

2. The applicant filed this application on 24 September 2008, together with an affidavit in support, in which the applicant stated the following;

   “I am not represented by any solicitor or therefore I am not fully aware of the legal consequences of the Court hearing.  Please consider my application in the light of above circumstances. 

   I could not attend the Court on time because I was not aware of the hearing date.” 

3. The applicant gave oral evidence to the Court this morning in further support of his application in which he departed from the evidence of his affidavit that he was not aware of the hearing date.  He told the Court that, in fact, he had received letters from the first respondent notifying him of the rescheduling of the hearing date to 21 July 2007, and had later forgotten the date of his hearing. 

4. The applicant confirmed in cross-examination that he continues to live at the address identified on the letters sent by both the Court and the first respondent.  The applicant also confirmed that he received a letter from the first respondent’s solicitors notifying him of the Orders made by the Court on 21 July 2008. 

5. In the circumstances, I am not satisfied that the applicant has satisfactorily explained his failure to appear at the hearing on 21 July 2008.  To say that he forgot is not a satisfactory explanation.  I note that the applicant participated in the NSW RRT Legal Advice Scheme and received free legal advice on 1 April 2008.  The applicant has also had ample time to seek any advice of his own accord in respect of his application to this Court for judicial review of the Tribunal’s decision.  In the circumstances, the statement made by the applicant in his affidavit; that he is not represented by a solicitor and was therefore not aware of the legal consequences of the Court hearing is not a satisfactory explanation. 

6. The applicant filed his application, as referred to in these Reasons above, seeking judicial review on 26 November 2007.  The grounds of that application are as follows;

   “1. The RRT make decision on 12 October 2007

   The applicant was notified on the 1 November 2007 and was posted and the same was received a few days later.

   2. The Refugee Tribunal has not taken into account all the relevant information when makings its decision, and in doing, so has erred in law.

   3. I was denied procedures fairness when the Tribunal member did not believe in my submissions and oral evidence.  The RRT member used old and outdated materials to justify his decision.  The member based his whole decision on one sided ifnomaiton [sic] for denying the application for the people coming from India.

   The Tribunals decision is totally contradictory of Professor Hathaway’s quote.  A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.  James Hathaway 1991 “The law of refugee status” Butterworths Canada) contrary to its claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that. 

   The applicant fees that the Tribunal did not give weight to the statements made by him in particular harassment from the political leaders. 

   I made an application for 39B Judiciary.”

7. The applicant attended a directions hearing before me on 13 December 2007.  On that occasion the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon.  The Order also contained the notation that, in the event that there was no appearance by the applicant at the hearing, the proceeding may be dealt with and dismissed in his absence.  No further document was filed by or on behalf the applicant in support of his application.  

8. The grounds of the application make bare assertions of error.  The applicant was invited by the Court this morning to expand upon the grounds of his application and to tell the Court what were the old and outdated materials that he claims the Tribunal Member used to justify its decision, and what was the relevant information that he says the Tribunal failed to take into account when making its decision.  The applicant’s responses were not meaningful or relevant to those statements.  The applicant responded simply that the Tribunal did not accept his information and did not believe him. 

9. The grounds of his application, as stated, are more in the nature of a disagreement with the findings and conclusion of the Tribunal.  Such complaints invite merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J). The grounds are otherwise unsupported by particulars, evidence or submissions, either oral or written.

10. In the circumstances, the applicant has not satisfied this Court that there is an arguable case to be tried in respect of his application for judicial review of the Tribunal’s decision, dated 12 October 2007.  Accordingly, the Court is not satisfied that there would be any utility in making orders sought by the applicant, even if the Court was satisfied by the applicant’s explanation for his failure to appear at the hearing, which it is not. 

11. The application filed by the applicant on 24 September 2008, is dismissed with costs. 

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

Deputy Associate:  E. Maconachie

Date:  21 October 2008