SZMTZ v Minister for Immigration and Anor (No.2)

[2009] FMCA 317

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTZ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 317

MIGRATION – Application for reinstatement – where applicant living in Queensland at time of original hearing – whether applicant had an arguable case that Tribunal erred in law.

Federal Magistrates Court Rules 2001
Migration Act 1958 (Cth), s.424A

SZIUD v Ministerfor Immigration [2006] FCA 1555
SZDFO v Minister for Immigration [2004] FCA 1192

Applicant: SZMTZ

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2470 of 2008

Judgment of: Raphael FM

Hearing date: 8 April 2009

Date of Last Submission: 8 April 2009

Delivered at: Sydney

Delivered on: 8 April 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $1,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2470 of 2008

SZMTZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 5 March 2009, the applicant was due to appear before the Court to seek review of a decision of the Refugee Review Tribunal made on 8 August 2008, and handed down on 2 September. The applicant had previously employed a solicitor to act for him, but that solicitor had ceased to act for him before the hearing. There is no suggestion that the applicant was unaware of the hearing date. The applicant did not attend the hearing and the proceedings were dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.

2. It is accepted that when a matter is dismissed due to an applicant’s non-appearance, the applicant has an opportunity to approach the Court to vacate the order and reinstate the application for hearing.  In order to persuade the Court that it should exercise its discretion to do those things, the applicant must satisfy the Court that he had a good reason for not attending the original hearing, and that he has at the very least an arguable case on the merits of his claim.  In other words, he has an arguable case that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.

3. This applicant tells the Court that he was in Queensland on 5 March. He was working on a farm that he says was 45 kilometres from the nearest township, and that township was itself a considerable distance from Sydney.  I note at this juncture the applicant never made an application to have the case transferred to Brisbane where it could have been heard by a federal magistrate.  He was content to allow it to remain in Sydney.  This may have been because the applicant was not represented, and I do not hold that failure against him.

4. What does influence me, however, is that whilst the applicant was aware of the hearing day and aware of the difficulties that he might have travelling to Sydney, he made no attempt to contact the Court and explain his problems.  If he had done so, a number of opportunities might have been open.  A telephone hearing could have been arranged, a video link with Brisbane could have been arranged, or the case could have been transferred to Brisbane.

5. The applicant told me that on the day in question (or more likely the day before) he asked the farmer for whom he worked to drive him into the nearest town, but the farmer told him that he was too busy to do so.  It seems that buses were available, although they appear to have run intermittently, from what the applicant told me.  I’m not satisfied that the applicant made appropriate efforts either to attend the hearing in Sydney or to make alternative arrangements.

6. I asked the applicant why he believed he had an arguable case that the Tribunal erred in law in the manner in which it came to its decision, he responded by handing up a document entitled “Amended Application”, although apparently such a document was given to the respondents in January 2009, and so this document should really be entitled “Further Amended Application”.  I have not filed the document but I am using it for the purposes of considering whether there is an arguable case.

7. The applicant is a Pakistani National who came to Australia on 20 February 2008.  His protection visa application gives only the very vaguest of details, and indicates that further information would be provided.  It was not.  In fact, the first time that a cohesive claim was put forward was at the hearing before the Tribunal.  At that time the applicant said that he was involved in the business of running a petrol pump which was destroyed by people he identified as members of the MQM (a Pakistani political party) on the night of the assassination of Benazir Bhutto.  He claimed that this group had targeted the petrol station for attack.

8. The Tribunal questioned the applicant at some length, and the applicant gave what the Tribunal considered to be a rather confusing story about his involvement with the petrol station and the petrol pump, and the reporting of the incident to the police.  He had produced a document which indicated that he had reported this incident to the police, but the document was inconsistent with the story the applicant was telling the Tribunal about his involvement in the business.  There did not seem to be in the story that the applicant told any particular ground for the mob to have attacked him personally.

9. The Tribunal came to some conclusions about the applicant saying at  [67] [CB 81] that:

   “The overall impression the Tribunal has of the evidence in this case is that the applicant lodged his protection visa to DIAC and then fabricated the details of his story later to suite the content of documents obtained in the interim.  He gave no plausible reason for being unable to impart in his protection visa application any personal details as to why he feared Convention-related persecution.  Leaving this concern entirely aside, the Applicant’s evidence as ultimately disclosed is riddled with inconsistency.”

10. One of the inconsistencies that the Tribunal found was that although the applicant claimed that his cause for concern for his safety arose only on the night of the Benazir Bhutto assassination, when those events occurred he had already applied for a visitor’s visa to Australia.  The Tribunal concluded that it could not be satisfied on the evidence that the applicant faced a real chance of persecution in Pakistan for a Convention reason.

11. The document submitted to the Court today gave four grounds of alleged jurisdictional error.  The first was that the Tribunal erred in law in determining that the applicant belonged to a particular social group for the purpose of the Convention.  The Tribunal may well have erred if it had come to that conclusion, although not necessarily erred in law, but it did not do so.  The applicant did not claim to be a member of a particular social group, he claimed that he was a member of the Awami National Party, and the Tribunal accepted that he may well have been.

12. The particulars of that first ground refer to findings by the Tribunal in relation to a deed. This has got nothing to do with the finding of a particular social group.  It is a finding of fact that the Tribunal has come to about a piece of evidence that the applicant provided to it.  Findings of this nature are strictly within the purview of the Tribunal.  I am unable to say that there is a reasonable prospect that the applicant could convince me that a jurisdictional error occurred in this way.

13. The second claim made by the applicant is that the Tribunal breached natural justice in understanding the meaning of the claims. The applicant particularised this by saying that he made claims that he was the owner of a petrol station in a joint partnership and at the same time he was also employed in the same company, and that the Tribunal failed to understand this.  Whilst it is possible that the Tribunal misunderstood the applicant’s evidence and made a mistake of fact in its findings, a mistaken fact is seldom sufficient to constitute jurisdictional error; SZDFO v Minister for Immigration [2004] FCA 1192. The Court is not obliged to put right mistakes of fact, because that would be providing the applicant with a merits review that is beyond the Court’s jurisdiction.

14. The third complaint made by the applicant was that the Tribunal asked itself and also the applicant the wrong question.  The particulars of this ground are that the Tribunal failed to understand that the report made by the police was prepared during the time of an incident.  It was not possible for the applicant or the police to have known the correct ownership information of his business entity at the time of the occurrence.  This may well be the case but there is no indication in the Tribunal’s decision that the applicant explained this to it, and it was up to the applicant to provide satisfactory information to the Tribunal to allow it to come to a decision in his favour.  Again, this appears to be a mere attempt to secure merits review from the Court.

15. The final matter contained in the further amended application is that the Tribunal breached s.424A of the Migration Act 1958 (Cth) by failing to disclose to the applicant that it was of the opinion that the deed of agreement was not genuine. As Spender J in SZIUD v Ministerfor Immigration [2006] FCA 1555 at [15]:

    “Finally, there is no obligation in the Tribunal to give advance notice of its proposed adverse findings. The Tribunal is obliged to hear the applicant and the case he wishes to present. Its obligations to inform the applicant concerning matters are exhaustively set out in s.424A of the Migration Act 1958.”

16. The applicant appears to have withdrawn other s.424A claims, but I am reminded by the respondent that those claims were related to independent country information and information provided by the applicant to the Tribunal, both of which are excluded from the provisions of s.424A.

17. In these circumstances I am unable to see that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  I cannot say that the applicant has provided me with sufficient grounds for restoring this case and I dismiss that application.  I order that the applicant pay the respondent’s costs which I assess in the sum of $1,000.00.

18. I should not leave this case without mentioning that the applicant requested an adjournment so that he could seek legal advice.  The applicant did have some legal advice at the beginning, his solicitor then ceased to act.  The applicant has told me that he has no ready funds available to pay for legal advice, and in the event that he did receive it, I am of the view that, if fair, it would encourage him not to proceed further.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  9 April 2009