SZMTC v Minister for Immigration
[2008] FMCA 1424
•13 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMTC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1424 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – reinstatement application for dismissal pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 by reason of failure of the applicant to appear – whether explanation by applicant for failure to appear was satisfactory – utility of reinstatement. |
| Federal Magistrates Court Rules 2001, r.13.03A(c) |
| Applicant: | SZMTC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2388 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 October 2008 |
| Date of Last Submission: | 13 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2008 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Solicitors for the Respondents: | Ms B. Rayment |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2388 of 2008
| SZMTC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed by the applicant on 9 October 2008 to set aside Orders made by the Court on 7 October 2008 dismissing the proceeding before this Court, commenced by way of application filed on 15 September 2008, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to appear at the directions hearing on that day.
In support of her application the applicant filed an affidavit in the following terms.
“1. Friend became very sick, I must take care of her in hospital.
2. So, I forgot the date. I apologise to the COURT [sic] for not appear.”
The applicant gave further evidence orally in support of her application during which, in addition to her evidence that her friend was sick, she said that: she was not feeling well; she herself had a fever and did not have a medical card when she visited her friend at the hospital; she was sick at the time and stayed home for several days; and, she forgot about the directions hearing.
The applicant was cross-examined by Ms Rayment, legal representative for the first respondent, on her evidence, during which time she gave entirely conflicting evidence about the provenance of the affidavit filed on 9 October 2008 in support of her application today. Her original evidence was that it was not her signature on the affidavit and that the affidavit had been prepared by the employee of her migration agent. She later changed that evidence to say that she had signed documents when asked, and that, on reflection, she had in fact signed the affidavit.
The applicant was also cross-examined by Ms Rayment as to the circumstances of her signing the affidavit. The affidavit appeared to have been witnessed by an authorised officer of the Registry of this Court and the section on the affidavit relating to the signing and swearing of an affidavit for a non-English speaking person was deleted. Ms Rayment put to the applicant, and the applicant agreed, that it was apparent that she needed the assistance of an interpreter for English, and the applicant was unable to explain anything further about the circumstances of the signing of the affidavit.
I am far from persuaded about the truthfulness of the applicant's assertions this afternoon. The applicant was less than frank in the giving of her evidence, and ready to change her answers when it appeared to her they may not be in her interests. In the circumstances, I place no weight on any of the evidence of the applicant either as contained her affidavit or given orally in support of her application this afternoon.
In the circumstances, there is no satisfactory explanation provided by the applicant to this Court for her failure to attend the Court on 7 October 2008.
Further, the Court spent some time seeking to elicit from the applicant what she meant by the grounds of her application. She was unable to give any further explanation or support to the bare assertions of error contained in the grounds of her application.
Each time she was asked by the Court to elaborate on the mistake that she says the Tribunal made in affirming the decision under review she began to reiterate her claims. Her submissions to the Court suggest that the applicant's complaints about the Tribunal's decision are no more than a disagreement with the findings and conclusions of the Tribunal. Certainly, the grounds of the application do not disclose any error capable of review by this Court.
In the circumstances, the Court is not satisfied that there is an arguable case to be tried, and the Court is not satisfied as to the utility any further conduct of this proceeding would have.
Accordingly, the application filed by the applicant on 9 October 2008 is dismissed with costs.
RECORDED : NOT TRANSCRIBED
ORDER DELIVERED
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
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