SZMWS v Minister for Immigration
[2009] FMCA 201
•6 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 201 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of failure of the applicant to appear. |
| Federal Magistrates Court Rules 2001, r.13.03C(1)(c) Migration Act 1958 (Cth), s.91R(3) |
| 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: | 6 March 2009 |
| Date of Last Submission: | 6 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2009 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| 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
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order that the application filed on 28 October 2008 be dismissed by reason of the failure of the applicant to appear at today's scheduled hearing pursuant to r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.
In support of the application, the first respondent tendered two letters, dated 3 March 2009, each addressed to the applicant. One letter was sent to the home address of the applicant and the other to the address for receiving mail. Both addresses were provided by the applicant on the initiating application. There has been no other document filed by or on behalf of the applicant that in any way changes those contact details.
The applicant attended a directions hearing before me on 25 November 2008. On that occasion directions were made granting the applicant leave to file and serve an amended application and any additional evidence by way of affidavit by 6 January 2009 and directing the applicant to file and serve written submissions in support of the application 14 days before the hearing. On that occasion, the matter was set down for final hearing on 17 March 2009 at 10.15am in this courtroom before me. No document was filed by or on behalf of the applicant in accordance with those directions or otherwise.
I note that the applicant met with a panel adviser in accordance with the NSW RRT Panel Advice Scheme on 22 December 2008 and received free legal advice.
On 20 January 2009, the Court wrote to the applicant at both the applicant's home address and the address for receiving mail informing the applicant that the hearing was relisted to today at 10.15am. On 2 March 2009, the Court sent a further letter to the applicant to each of the addresses identified by the applicant by Express Post letters informing the applicant that the hearing scheduled for this morning was rescheduled for 2.15pm this afternoon.
There was no appearance by the applicant this morning at 10.15am, nor any communication to my chambers from the applicant that he had attended Court at 10.15am this morning and was expecting his hearing to commence at 10.15am.
RECORDED : NOT TRANSCRIBED
Further, there has been no communication received by the Court or by the first respondent or the first respondent's legal representatives from the applicant seeking any adjournment of this afternoon's hearing.
At the first court date before me on 25 November 2008, it was made clear to the applicant by notation on the Order that, if the applicant failed to appear at the scheduled hearing, the Court may dismiss his application in his absence without further notice. I note that the letters from the first respondent's solicitors, dated 3 March 2009, also informed the applicant that the first respondent would seek to have the application dismissed if the applicant failed to appear.
The grounds of the application are expressed as follows:
“1. Jurisdictional error has been 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.
A perusal of the findings and reasons of the Refugee Review Tribunal (“the Tribunal”) disclose that at the heart of the Tribunal's affirming the decision under review was its adverse credibility findings in respect of the applicant's claims.
The Tribunal referred to conduct engaged in in Australia. However the Tribunal was not satisfied that such conduct was engaged in otherwise than for the purposes of strengthening the applicant's refugee claims. The Tribunal noted that, in the circumstances, it was required to disregard such conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth).
I note that following the hearing before the Tribunal, in a letter dated 22 August 2008, the Tribunal wrote to the applicant and put to him various inconsistencies between the applicant's written statement in support of the protection visa application and oral evidence given at the Tribunal hearing on 18 August 2008. The Tribunal’s letter invited the applicant to respond. The Tribunal noted that the applicant provided written comments on 5 September 2008, which it considered.
Without making particular findings, a preliminary reading of the decision record of the Tribunal does not make apparent any error by the Tribunal going to its jurisdiction.
I note that the first respondent contended both in the response filed, on 5 November 2008, and in submissions filed, on 26 February 2009, the Tribunal's decision is not affected by jurisdictional error and is, therefore, a privative clause decision. As stated above, I make no finding about that matter. However, I do have regard to the general and unspecified grounds provided by the applicant in the application that are unsupported by particulars, evidence or submissions and the failure by the applicant to file any further material in support of the application in considering whether or not to dismiss the proceeding this afternoon.
The matter has been called outside on at least three occasions. The time is now 2.55pm. In the circumstances, I am satisfied that the applicant should have been aware of the rescheduling of this afternoon's hearing and, for whatever reason, has chosen not to attend.
Accordingly, I am satisfied that the orders sought by the first respondent ought be made and the applicant’s proceeding before this Court, commenced by way of application filed on 28 October 2008 should be dismissed with costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 25 March 2009
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