SZMTC v Minister for Immigration

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

In the Federal Magistrates Court, SZMTC sought to have a dismissal of their proceedings set aside, which had been ordered due to their failure to appear at a hearing. The court was tasked with determining whether the explanation provided by SZMTC for their non-attendance was satisfactory and whether it was in the interests of justice to allow the proceedings to be reinstated. The application was made under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001. The applicant, SZMTC, appeared in person with the assistance of a Mandarin interpreter, while the respondents were represented by Ms B. Rayment.

The court needed to decide whether the applicant's explanation for not appearing at the directions hearing was satisfactory and whether the proceedings should be reinstated. The applicant argued that they missed the hearing because a friend was very ill and they had to attend to her in the hospital, resulting in them forgetting the hearing date. They also claimed to have been unwell themselves and did not have a medical card when visiting their friend. However, the court was not persuaded by the applicant's evidence, finding it inconsistent and lacking in credibility. The applicant's affidavit, which was supposed to have been signed by them, was witnessed by an authorised officer of the Registry, but it lacked the necessary section for a non-English speaking person to sign. The court also noted that the applicant required an interpreter for English, but could not explain the circumstances of signing the affidavit.

The Federal Magistrate, Emmett FM, dismissed the application on the basis that there was no satisfactory explanation for the applicant's failure to appear at the hearing. The Magistrate found the applicant's evidence to be less than frank and ready to change when it seemed to be against their interests. The Magistrate was also not satisfied that there was an arguable case to be tried and that further conduct of the proceeding would be in the interests of justice. The application was dismissed with costs.

The court made no orders for costs and did not transcribe the record of the proceedings. The reasons for judgment were delivered on 13 October 2008, and the Deputy Associate certified that the eleven paragraphs were a true copy of the reasons for judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established