SZMWS v Minister for Immigration - [2009] FMCA 302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWS v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2009] FMCA 302

MIGRATION – Review of decision of Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the application had reasonable prospects of success.

Applicant:

SZMWS

First Respondent:

MINISTER FOR IMMIGRATION CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2776 of 2008

Judgment of:

Emmett FM

hearing date:

30 March 2009

date of last submission:

30 March 2009

delivered at:

Sydney

delivered on:

30 March 2009

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

Ms L. Weston, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2776 of 2008

SZMWS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

By motion filed on 25 March 2009, the Applicant seeks an order setting aside the order made by this Court on 6 March 2009 dismissing the Applicant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 September 2008.
The Applicant failed to appear at the scheduled hearing on 6 March 2009 and I refer to reasons given by me on that occasion for the orders made.
In support of his motion this morning, the Applicant relied on an affidavit “sworn / affirmed” by him on 25 March 2009. The affidavit states as follows:
“1. FMC changed date, but no one called me before. I seldom open the mail box.
2. I can’t read English, I just think the letter is same because they look similar.”
The Applicant gave oral evidence to the Court about his explanation for his failure to appear. The Applicant’s evidence did not go beyond the contents of his affidavit.
Counsel for the First Respondent, Mr Kennett, cross-examined the Applicant. Under cross-examination, the Applicant appeared to say that he did not check his mail box from 20 January 2009 to 17 March 2009.
The Court wrote to the applicant at both the applicant’s home address and his address for receiving mail, informing the applicant that the hearing was relisted to 6 March 2009.
I accept entirely the submission of counsel for the First Respondent that the Applicant has an obligation to assist himself by keeping up to date with the state of his proceeding.
I note that the letters from the Court rescheduling the hearing were sent to the Applicant by express post both at his post office box and to his home address. For the Applicant neither to check his mail, open his mail nor to ensure that any letters are translated to him for two months in no way discharges that obligation.
Even if the Applicant did not intend to suggest in cross-examination that he had not checked his mailbox for two months, in my view it is still not a satisfactory explanation for the Applicant to say he did not receive a letter rescheduling his hearing because he seldom opens his mailbox. As stated above, the Court also sent a letter to the Applicant’s home address. The Applicant gave no evidence about his practice of checking letters at his home address. Moreover, I note that neither of the letters sent by the Court was returned to the Court. Further, the Court raised with the Applicant at the first court date, the undesirability of the Applicant using a post office box as an address for receiving mail. The Applicant confirmed to the Court that the post office box was in his name only and that he did not share it.
It was also explained to the Applicant at the first court date that he was required to notify the Court and the First Respondent immediately on any change of contact details. Further, the Applicant was provided at the first court date, before me, with details of a translation and interpreting service as he had been by the Tribunal and the Department on prior occasions. The Applicant was aware that the First Respondent was directed by the Court to send the Applicant various documents in preparation for the hearing. In the circumstances, it is all the more incumbent upon the Applicant to ensure his address for receiving mail enables him to check his mail box more often than “seldom”.
In the circumstances, I am far from satisfied that the explanation offered by the Applicant, that he “seldom” opens his mail box, is a reasonable explanation for his failure to attend the scheduled hearing date.
Whilst on one view it is unnecessary for me to proceed further, I do note that the Applicant: was given leave on 25 November 2008 to file and serve an amended application giving complete particulars of each ground of review relied upon; was directed to file and serve any affidavit containing additional evidence to be relied upon including any transcript of the Tribunal hearing; was directed to give notice to the First Respondent and the Court if he wished to rely on the tapes of the hearing; and, was directed to file and serve written submissions in support of his application.
The Applicant confirmed to the Court this morning that there has been no document filed by him or on his behalf in support of his application in accordance with the Court’s directions or otherwise.
The grounds of the Applicant’s application were interpreted for him this morning and he confirmed that those were the grounds upon which he relied. The grounds are as follows:
“1. Jurisdictional error has bee (sic) made. RRT took the cases which are against me. They did not take the successful case to support me.
2. Procedural Fairness has been denied, RRT did not consider my evidence fairly.”
Neither of the grounds is supported by particulars, evidence or submissions. The grounds make bare assertions that do not disclose an error capable of review by this Court. Moreover, the grounds are expressed in terms commonly seen in this Court.
The Court invited the Applicant to say whatever he wished in support of those grounds, or in support of his application generally, that the Tribunal’s decision is affected by a legal mistake that goes to its jurisdiction. The Applicant made no meaningful submission other than to say that the Tribunal proceeded in its usual way and did not specifically look at his case in particular.
Even a brief reading of the Tribunal’s decision makes clear that the Tribunal had regard to the claims made by the Applicant, explored with the Applicant at a hearing claims made by the Applicant, put matters of concern that it had about the Applicant to the Applicant and noted the Applicant’s responses. Otherwise, I refer to the reasons I gave on 6 March 2009 in relation to the Tribunal’s decision.
In the circumstances, I am far from satisfied that the application filed by the Applicant on 28 October 2008 has any, or any reasonable, prospect of success.
Accordingly, the order sought by the Applicant in his motion filed on 25 March 2009 is refused.
REORDERED : NOT TRANSCRIBED
ORDERS DELIVERED

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 6 April 2009