SZLUM v Minister for Immigration
[2008] FMCA 1073
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1073 |
| MIGRATION – RRT decision – applicant did not attend Tribunal hearing – did not attend Court hearing – application to reinstate proceeding – no acceptable explanation for absence – no prospects of success – application refused. |
| Federal Magistrates Court Rules 2001 (Cth), r.16.05(2)(a) Migration Act 1958 (Cth), s.426A(1) |
| SZLUM v Minister for Immigration & Anor [2008] FMCA 719 |
| Applicant: | SZLUM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3923 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 22 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr P Snell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant’s application under r.16.05(2)(a) to set aside orders made on 23 May 2008 is refused.
The applicant must pay the first respondent’s costs in the sum of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3923 of 2007
| SZLUM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an interlocutory application which should be read as seeking an order that the Court set aside an order made in this proceeding by Nicholls FM on 23 May 2008. His Honour dismissed the principal application on the ground of the applicant’s non‑attendance on the date when it was listed for final hearing. The principal application was an application for judicial review of a decision of the Refugee Review Tribunal handed down on 29 November 2007, in which the Tribunal affirmed a decision of a delegate made on 17 August 2007 refusing to grant a protection visa to the applicant.
The application to set aside the dismissal order was supported by a document purporting to be an affidavit of the applicant. However, it does not contain a jurat for a non‑English speaking deponent and, as the applicant tells me that she cannot read English, the affidavit was not properly sworn and I would not give any weight to its contents. It gives a one‑line explanation for the applicant’s absence from the hearing, being: “I missed the time and place, when I arrived at 88 Goulburn St. Sydney, the hearing was dismissed”.
The applicant today accepted my invitation to give further evidence on oath from the witness box. She there proffered the explanation for her absence, as being that she had understood the hearing to have been appointed for 30 May and not 23 May 2008, and that when she attended on the 30th there was no one here. Under cross‑examination, she maintained that she had always had that belief as to the hearing date, and said that it arose from the contents of a Court order that she was given when she attended the first court date on 2 April 2008 before Nicholls FM, but which she had not brought to Court today.
She maintained that she had never been told that the hearing was on 23 May 2008, even after she was shown the Court copy of the written order made on 2 April 2008, which appointed a hearing for 11.30 am on 23 May 2008. She also maintained that she was unaware of the contents of three letters subsequently sent to the applicant, notifying a change in the time for the hearing on 23 May 2008 to 10 am. These letters were sent by Nicholls FM’s associate to the applicant at a postal address and a residential address which she has today confirmed were hers, and also by the solicitors for the Minister.
The Court file indicates that there was no attendance by the applicant on the 23rd when the matter was called at 10.05 am, and that this remained the situation at 10.30 am, when his Honour dismissed the application. His Honour gave reasons, which were published as SZLUM v Minister for Immigration & Anor [2008] FMCA 719, indicating his satisfaction that she was on notice of the time for the hearing.
I was not impressed by the applicant’s evidence from the witness box, and do not believe her claims that she thought the hearing was on another day and that she attended on that other day. I might have given more credence to the explanation originally suggested in the purported affidavit, that there was confusion about the commencement time for the hearing on 23 May, but this is not what the applicant now asks me to accept. On all the evidence, I am not satisfied that the applicant has presented to the Court acceptable evidence explaining her absence from the hearing, so as to justify the setting aside of that order under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).
A further reason for declining to set aside the order dismissing the application, is that I do not consider that the principal application has any reasonable prospect of success. Indeed, I consider that it is hopeless.
The applicant’s application for a protection visa made very brief claims that the applicant had been persecuted in China for attending house church gatherings in the home of a neighbour. The delegate’s decision was based on his lack of satisfaction as to the credibility of these claims, and pointed to a number of reasons for doubting them. These included the applicant’s obtaining a passport in China during the period of her claimed persecution, and also her ability to leave China on that passport without incident.
Her application for review, like her original visa application, was lodged by a registered migration agent, Weiming Qian. The application requested that correspondence should be sent to that adviser at a post box in Auburn, which the applicant has also in the present proceeding identified as her own postal address.
An invitation by the Tribunal to the applicant to attend a hearing on 2 November 2007 was posted to the agent by letter dated 27 September 2007. It was acknowledged with a “yes” response received by the Tribunal on 3 October 2007. However, there was no attendance at the time appointed, although the Tribunal received a phone call from an anonymous person claiming to be a friend of the applicant at the stated time for commencement, being 10.30 am. This message said that: “the applicant was running late. She was at the train station, on her way in”. A second message was received by another Tribunal officer at 10.48 am from an anonymous friend of the applicant:
A friend of the applicant called to inform that the applicant would not be able to get on time for a hearing from Westmead and would therefore not attend the hearing. The applicant just returned from Brisbane and was not aware of the daylight saving time in Sydney.
The Tribunal did not subsequently receive any communication from either the applicant or her agent requesting a rescheduled hearing, and it handed down a decision affirming the delegate’s decision on 29 November 2007. In a statement of reasons, the Tribunal member indicated that she had considered whether to exercise the power to reschedule the hearing, but had decided not to do so, but to exercise the power under s.426A(1) of the Migration Act to proceed to make a decision without taking any further action. In my opinion, the Tribunal plainly had that power, and I can discern no reasonably arguable jurisdictional error in how it exercised its discretion. In my opinion, it was open to the Tribunal to be satisfied “that the claimed reasons for non‑attendance are unsatisfactory”.
The Tribunal’s reason for affirming the delegate’s decision was that “without further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing and test the evidence”, it was not satisfied as to any of the claims made in the visa application. I can see no arguable jurisdictional error affecting that reasoning.
The applicant’s application to the Court contained as its grounds the following:
1.Jurisdictional error has been made. RRT take the cases which are against me. They did not take the successful case to support me.
2.Procedural Fairness has been denied.
3.RRT did not give me letter to explain doubts.
These have never been explained to the Court by particulars, amended application or written submission, although ample opportunity has been given to the applicant to do so. The applicant has also received free legal advice about her case from an experienced immigration solicitor.
In all the circumstances, even if the applicant had an acceptable reason for being absent from the hearing before Nicholls FM, I would conclude that it would be futile to reinstate her application. I would therefore refuse the present application for that reason also.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 4 August 2008
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