SZMIU and Minister for Immigration and Anor - [2011] FMCA 758

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIU & MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 758

MIGRATION – VISA – Protection (Class XA) visa – application for review of decision of Refugee Review Tribunal.

PRACTICE & PROCEDURE – Application to set aside decision of Federal Magistrates Court – where earlier application for judicial review dismissed due to the Applicant’s failure to attend hearing – delay – whether adequate explanation for failure to attend hearing – whether any utility in setting aside decision – where no jurisdictional error disclosed.

Migration Act 1958 ss.422B, 424A, 425
Federal Magistrates Court Rules 2001 r.13.03A

NAVX & Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZOZO & Minister for Immigration and Citizenship [2011] FCA 944
Minister for Immigration and Ethnic Affairs & Wu Shan Liang [1996] HCA 6 NAHI & Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant:

SZMIU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1425 of 2008

Judgment of:

Scarlett FM

Hearing date:

1 September 2011

Date of Last Submission:

1 September 2011

Delivered at:

Sydney

Delivered on:

1 September 2011

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Alderton

Solicitors for the Respondent:

Sparke Helmore

Orders

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1425 of 2008

SZMIU

Applicant

And

MINISTER FOR IMMIGRATION &CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant in this case seeks to set aside a decision of this Court made on 20^th October 2008. On that date the Applicant’s application for review of a decision of the Refugee Review Tribunal was dismissed under Rule 13.03A(c) because the Applicant had not attended Court for the final hearing.
The Applicant filed an application in a case and an affidavit on 4^th August 2011. In that application he seeks to set aside the decision of the Refugee Review Tribunal. Whilst the application does not say so specifically, the Applicant is clearly seeking to set aside the decision of this Court on 20^th October 2008.
The application refers specifically to the decision of the Refugee Review Tribunal. The Applicant seeks these orders:
i)In making of the decision the Refugee Review Tribunal denied the Applicant procedural fairness, an order setting aside the decision.
ii)The Refugee Review Tribunal appeared to be biased.
iii)The Refugee Review Tribunal denied the Applicant natural justice.
iv)A writ of certiorari quashing the decision of Refugee Review Tribunal.
In his supporting affidavit the Applicant sets out the reasons why he says that he did not attend the hearing. In his affidavit he says: follows:
1. I did not attend the hearing on 20.10.2008 because I had thought the date of the hearing was 30.10.2008, thus, I missed the hearing.
2. After I missed the hearing I thought I had no right to appeal. Last week one of my friends suggested to me to go to Court.
The Minister for Immigration and Citizenship opposes the Applicant’s application to set aside the decision.
The Applicant was not required for cross-examination on his affidavit. The Applicant told the Court that when he found out that the hearing had taken place in his absence he thought he could do nothing so he gave up. It was not until recently that he found out that he could apply to set the decision aside. He told the Court that he knew that his visa had expired, but he thought it would be better to stay in Australia rather than go back to China.
The Applicant agreed with the Court that he had not attended the hearing of the Refugee Review Tribunal. He said that he was sick, but he had asked his agent to tell the Tribunal he could not attend.
Mr Alderton, who appeared for the Minister, told the Court that there was no indication in the Court Book that the Applicant had nominated any migration agent. The Applicant said in reply that, originally, an overseas student had helped him apply or a visa. Later he sought the advice of a migration agent and paid that person money. That agent did not do much for him.
The application is opposed by the Minister on two grounds. First, that the Applicant has not given a satisfactory explanation for his lengthy delay in applying to set aside the decision. Second, that even if the Applicant were let in and his application for review was reheard, he had not established any jurisdictional error. The grounds given by the Applicant in his application for review relate solely to the factual merits of the case and in his recent application he has claimed bias and denial of natural justice, but has not provided any grounds for either of those claims.
The first point to be made is that the Applicant has been guilty of a lengthy delay in applying to set aside the decision of this Court. The decision was made on 20^th October 2008. This application was not filed until 4^th August 2011. It is a delay of nearly three years. I am not satisfied that the explanation given by the Applicant is a satisfactory explanation for the delay.
It is also relevant that the original application to review the decision of the Refugee Review Tribunal does not disclose any jurisdictional error. The Applicant applied to the Refugee Review Tribunal on 5^th February 2008 for review of the decision of the Minister’s delegate. In that application he did not disclose that a migration agent was acting for him. He gave as his address for correspondence a post office box number. The Tribunal wrote to him at that address inviting him to attend a hearing to take place on 17^th April 2008. On 2^nd April 2008 the Applicant advised the Tribunal of a change of his postal address.
On 4^th April the Tribunal wrote to the Applicant at the new address confirming the details of the hearing. The Applicant did not attend the hearing. Due to the fact that the Applicant did not attend and the Tribunal had not received any advice from the Applicant that he was unable to attend, the Tribunal proceeded to make a decision.
I am satisfied that the Tribunal correctly exercised the discretion given to it under s.426A of the Migration Act. It is clear that the Tribunal did not have sufficient evidence to be satisfied that the Applicant had a well founded fear of persecution. This is hardly surprising given the fact that the Tribunal had invited the Applicant to a hearing because it was not satisfied on the evidence before it that it could make a decision in favour of the Applicant.
As the Applicant did not attend the Tribunal hearing or provide any further evidence the inevitable consequence was the rejection of his application. I refer to the decision of the Full Court of the Federal Court in NAVX & Minister for Immigration and Multicultural and Indigenous Affairs[1]. As was recently said by Reeves J in SZOZO & Minister for Immigration and Citizenship[2] at paragraph [21]:
The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims.
[1] [2004] FCAFC 287
[2] [2011] FCA 944
The Tribunal clearly had the power under s.426A of the Migration Act to proceed in the absence of the applicant. As His Honour said in SZOZO at paragraph [22]:
While that power must be exercised reasonably and cannot be exercised capriciously, the election to proceed to a decision on the review in the absence of the appellant cannot, by itself, be treated as the expression of an unreasonable exercise of the power.
The Applicant’s claims in his original application go entirely to the factual merits of his case. It is well established that this Court cannot review the merits of the Tribunal’s decision (see Minister for Immigration and Ethnic Affairs & Wu Shan Liang[3] and also NAHI & Minister for Immigration and Multicultural and Indigenous Affairs[4]).
[3] [1996] HCA 6
[4] [2004] FCAFC 10
In his application to this Court the Applicant claims that the Refugee Review Tribunal denied him procedural fairness. There is no evidence of any denial of procedural fairness. The Tribunal wrote to the Applicant at the address that he had given inviting him to attend the hearing. The Applicant did not attend the hearing. The Applicant may have told his migration agent that he was sick, but this migration agent, whoever he or she was, did not send any communication to the Tribunal.
The Applicant complains that the Refugee Review Tribunal denied him natural justice. The natural justice hearing rule is prescribed for the purpose of these proceedings by s.422B of the Migration Act. The Tribunal quite clearly complied with the provisions of s.425 of the Act and there is no breach of s.424A of the Act. There is no evidence of any denial of natural justice.
The Applicant claims that the Refugee Review Tribunal appeared to be biased. This is a curious claim as the Applicant did not attend the hearing and it is difficult to see how he could have obtained any apprehension of bias at a Tribunal hearing where he was not present.
The Applicant has not established a satisfactory explanation for his failure to attend the hearing of this Court on 20^th October 2008. The Applicant has not shown any jurisdictional error on the part of the Refugee Review Tribunal whose decision he seeks to review.

It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister for Immigration and Citizenship. The Applicant has been wholly unsuccessful in his application. I am satisfied that this is an appropriate matter for an order for costs in favour of the Minister. The amount sought is $500.00. That is, if I may say so, a modest amount of costs for the Minister to claim. I am satisfied that an order for costs in the sum of $500.00 is appropriate. The Applicant is to pay the First Respondent’s costs fixed in the sum of $500.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM delivered on 1 September 2011.

Date: 30 September 2011