SZMYD v Minister for Immigration
[2009] FMCA 241
•24 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMYD v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 241 |
| 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 at the scheduled hearing – whether the application has any reasonable prospects of success. |
| Federal Magistrates Court Rules 2001, r.13.03(C)(1)(c); 44.12 |
| Applicant: | SZMYD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2998 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 24 March 2009 |
| Date of Last Submission: | 24 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2009 |
REPRESENTATION
| No appearance by or on behalf of the applicant |
| Counsel for the Respondent: | Mr H. Bevan |
| Solicitors for the Respondent: | Mr B. May, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2998 of 2008
| SZMYD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
Respondents
EX TEMPORE
REASONS FOR JUDGMENT
The First Respondent seeks an order that the proceeding before this Court commenced by way of application filed on, 18 November 2008, be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by the failure of the Applicant to appear at today's scheduled hearing.
The Applicant attended a directions hearing before me on, 4 December 2008, and, on that occasion the matter was set down for a show cause hearing on 9 December 2008 at 10.15am pursuant to r.44.12 of the Federal Magistrates Court Rules 2001. The Applicant was given leave on 4 December 2008 to file and serve an amended application giving complete particulars of each ground of review relied upon. The grounds of the initiating application filed on 18 November 2008 are in the following terms:
“1, I am a Chinese citizen and I am a genuine Falungong member. I have been practicing for years and I have been warned by my local security and company to be put in prison if I continue this activity.
2, I can not stop practicing Falungong since it has helped a lot with my health condition. I can not go back to China since I am very scared to be sentenced.
3, I have been actively practicing Falungong since I arrived in Australia. I believe that Chinese government still look for me if I return. My family told me not to go back since they came to my home twice and asked where I am about.”
None of those grounds identify an error capable of review by this Court and appear to be more in the nature of a restatement of the Applicant's original claim.
On 9 December 2008, the show cause hearing was dispensed with on the basis that the Applicant raised for the first time a complaint that the Tribunal had not allowed him sufficient time to obtain documents from China in support of his application. The Applicant was given further leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 3 February 2009, together with any additional evidence by way of affidavit, including any transcript of the Tribunal hearing.
The Applicant was also directed to file and serve written submissions in support of his application and the matter was set down for final hearing on 24 February 2009 at 10.15am.
The Applicant was also provided with an opportunity at the directions hearing on 9 December 2008 to meet with a panel adviser and receive free legal advice. However, I note on the certificate from the panel adviser that the Applicant failed to appear, although written advice was sent to the Applicant by the panel adviser on 8 February 2009.
There has been no document filed by or on behalf of the Applicant in support of his application in accordance with the directions made by this Court or otherwise.
On 18 February 2009, the Court wrote to the Applicant at the address provided on the application in Wango Street, Canterbury and also to the Applicant at an address provided to the Court in Western Australia. The letter informed the Applicant that his proceeding had been relisted for hearing today at 10.15am. The letter sent to the Applicant to the address in Wango Street, Canterbury was sent by express post and returned to Court with the marking that “this person is no longer living here, return to sender”.
There has been no communication from the Applicant received by this Court or by the First Respondent or the First Respondent's legal advisers seeking any adjournment of today's hearing or, indeed, any communication from the Applicant at all.
I note that it is now 10.38am, the matter has been called outside on three occasions and there is no appearance by the Applicant.
In the circumstances, I am satisfied that the Applicant is or should be aware of today's hearing and for whatever reason has chosen not to attend. Accordingly the order sought by the First Respondent is appropriate.
In addition to the reasons I have already given, I also have regard to the written submissions filed by the First Respondent on 16 February 2009 which contend that the Tribunal's decision is not affected by jurisdictional error. Whilst I make no findings in respect of the Applicant's application, I do note that the Tribunal found that the Applicant was not a witness of truth. I further note that the Tribunal had regard to the claims made by the Applicant in his protection visa application and a statement provided in support of his application for review.
The Applicant attended a hearing before the Tribunal on 4 September 2008 at which the Applicant gave evidence. The Tribunal's decision record suggests that the Tribunal explored the Applicant's claims at the hearing and put to the Applicant matters of concern that the Tribunal had with the Applicant’s evidence.
The Tribunal also identified independent information to which it had regard, particularly in relation to information on the treatment of Falun Gong practitioners in China and China's one child policy.
Ultimately, the Tribunal found the Applicant's evidence to be inconsistent and the Tribunal found that the Applicant was not a witness of truth. The Tribunal rejected the Applicant's claims of past harm and indeed rejected all the Applicant's claims save that he was a citizen of the Peoples Republic of China. In the circumstances, the Tribunal affirmed the decision under review.
As I have stated, whilst I make no final determination, there does not appear to be jurisdictional error on the face of the Tribunal's decision record. Neither does the Applicant identify any error capable of review in the grounds of his application.
In the circumstances, the application has no, or no reasonable, prospects of success.
The First Respondent seeks costs fixed in the amount of $4,700.00. I note that such sum is in accordance with the Cost Schedule of this Court.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 27 March 2009
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