SZMEP v Minister for Immigration
[2008] FMCA 1058
•28 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1058 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – failure of the applicant to attend court. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| Applicant: | SZMEP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1027 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 28 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2008 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
INTELOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1027 of 2008
| SZMEP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate for the Minister not to grant the applicant a protection visa. Their decision was handed down on 27 March 2008.
Background concerning the applicant's protection visa claims and the Tribunal decision on them is set out in the Minister's written submissions filed on 17 July 2008. I adopt as background for the purposes of this judgment paragraphs 2 through to 7 of those submissions:
The applicant’s written claims were contained in a statement attached to his protection visa application: court book (“CB”) 27-28. He provided no further written claims to the Department or to the Tribunal and did not attend his Tribunal hearing.
The applicant, a citizen of People’s Republic of China (“PRC”) claimed to fear persecution as a result of his practice of Falun Gong. He stated that he was an active practitioner and tried to introduce Falun Gong to his friends. In November 2006, the applicant’s supervisor became aware of his practice of Falun Gong and the applicant was interviewed and told to ‘change his thoughts and beliefs’. In September 2007, the applicant was warned by his local security and threatened that he would lose his job and be arrested if he continued to practise Falun Gong.
The delegate refused the applicant a protection visa on the basis of the applicant’s vague and unsubstantiated claims and as a result was not satisfied as to his credibility: CB 40.3. The delegate relied on country information relating to exit procedures from the PRC and was not satisfied that the applicant would be able to depart the PRC on a passport in his own name if he was of interest to the Chinese authorities: CB 38.8.
Tribunal proceedings
On 21 January 2008, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision: CB 42-45. By a letter dated 8 February 2008, the Tribunal validly invited the applicant to attend a hearing on 7 March 2008 to give oral evidence and present arguments in support of his case: CB 48-49.
The applicant did not reply to that invitation and failed to attend the hearing on 7 March 2008: CB 51-52. The Tribunal proceeded to make a decision in accordance with s.426A of the Migration Act 1958 (Cth) without taking any further action to allow or enable the applicant to appear before it: CB 62.1.
The Tribunal found that the applicant’s claims were “vague, general and lacking in detail” (CB 62.4) and as a result was not satisfied that he invoked refugee protection obligations in Australia. Given his failure to attend the hearing, the Tribunal was unable to test his claims and found it could not be satisfied that there was a real chance that the applicant had suffered any harm amounting to persecution: CB 63.1. The Tribunal’s decision and approach reveals no error.
The applicant filed a show cause application in this matter on 23 April 2008. No amended application has been filed, although the applicant has had the opportunity to consider his position. I gave the applicant the opportunity to file an amended application up until 14 July 2008. The applicant attended Court on 2 June 2008. At that time, I ordered that the matter be listed today for a show cause hearing, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The applicant did not appear when this matter was called at 11.20am and 11.23am today. However, the Court was successful in contacting him on his mobile telephone. The applicant told me that he had moved to Western Australia to work in June. He has not filed any change of address for service. Neither has he notified the Court or the Minister's solicitors of any inability to attend Court today. The applicant told me that he had forgotten today's hearing. For some reason unknown to me he was expecting the Court or the Minister's solicitors to remind him. The Minister's solicitors did in fact write to the applicant on 17 July 2008 at his address for service to provide a copy of the Minister's submissions and to remind him of today's hearing. The applicant told me that there are a number of people living at that address, but no one at the address informed him of any letter. The applicant told me that he was very busy and sought the opportunity for another hearing at some other time. I rejected that request.
The applicant knew that he needed to attend Court today because I told him so on 2 June 2008. His claim that he had forgotten today's hearing is implausible if this matter has any importance for him. He has not provided any reason for his non-attendance at Court today apart from his own forgetfulness and an apparent expectation that others would be reminding him of today's Court hearing. His attitude to the hearing is unacceptable.
I have decided to dismiss the application on account of the applicant's non-attendance pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules. I so order.
Costs should follow the event in this case. The Minister seeks scale costs of $2,500. 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 application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 29 July 2008
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