SZMMC v Minister for Immigration
[2008] FMCA 1264
•26 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1264 |
| MIGRATION – RRT decision declining jurisdiction – Tribunal’s application of time limit – application for judicial review dismissed for non‑attendance at first court date – no prospects of success – application for reinstatement refused. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a) Migration Act 1958 (Cth), s.412(1)(b) Migration Regulations 1994 (Cth), reg.4.31(2)(b) |
| Applicant: | SZMMC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1686 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 26 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms A Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application under r.16.05(2)(a) to set aside orders made on 22 July 2008 is refused.
The applicant must pay the first respondent’s costs in the sum of $900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1686 of 2008
| SZMMC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an interlocutory application filed on 12 August 2008, asking the Court to set aside an order I made on 22 July 2008, when I dismissed the principal application under r.13.03A(c) of the Federal Magistrates Court Rules due to the absence of the applicant from the first court date listing. I made this order after considering the papers filed by the applicant, which appeared clearly to show no merit in the application. It appeared to me that the applicant should have been aware from the stamping of the application that he was required to attend Court on the appointed day and time.
The application to set aside that order is supported by a purported affidavit, without a translator’s certificate, which states:
I could not attend the Court on the designated date because I could not see the hearing date and time on my application. I am not educated in English, I always depend on my friend. I was waiting for Court letter. Finally when I have shown my friend, its already late.
The Minister’s representative has not sought to cross‑examine the applicant on these statements, and in that circumstance I would have reinstated the matter if I were persuaded that there might be any purpose in doing so. However, I can see no arguable basis for the principal application to succeed.
The principal application, in effect, sought orders by way of mandamus to compel the Refugee Review Tribunal to determine an application for review lodged by the applicant on 10 September 2007. In the application, he sought review of a delegate’s decision which had been made on 30 July 2007, refusing to grant a protection visa to the applicant.
The delegate’s notification letter had been posted on 31 July 2007 to the applicant’s authorised recipient for correspondence, a migration agent. According to the calculations of the Tribunal which are set out in its reasons, the provisions of the Migration Act and Regulations deemed the notification to have been received on 8 August 2007. The application to the Tribunal was therefore made outside the mandatory 28 days required under s.412(1)(b) of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) reg.4.31(2)(b).
Neither the principal application to the Court, nor the applicant’s application to reinstate, nor his submissions today, have raised any dispute with the factual findings or the reasoning of the Tribunal’s decision to decline jurisdiction. On the material before me, I can see no arguable basis for holding that the Tribunal had jurisdiction in the matter.
I therefore consider that it would be futile to reinstate the application, and for that reason I would refuse the present interlocutory application.
The applicant today made submissions that he did not wish to return to his country of nationality, Malaysia, because he feared harm. His claims in this respect were addressed by the delegate after interviewing the applicant, and were not accepted. The Tribunal also invited the applicant to attend a hearing, where he would have had the opportunity to explain his claims, but he did not attend. In its decision, the Tribunal adverted to this after explaining why it found that it did not have jurisdiction. It said that “in any event” it was not satisfied that the applicant was a refugee. As I have noted, the Tribunal did not have jurisdiction to address the applicant’s refugee status, and its conclusion cannot be treated as conclusive in any respect. However, the possibility that the applicant might have genuine refugee claims cannot provide a reason for my having power to order the Tribunal to assume a jurisdiction which it lacked.
For the above reasons, I do not consider that the applicant has established sufficient grounds for restoring the present matter to my list.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 5 September 2008
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