SZNHV v Minister for Immigration
[2009] FMCA 301
•24 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNHV v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 301 |
| 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 – whether the application has any reasonable prospects of success. |
| Federal Magistrates Court Rules 2001, r.13.03C(1)(c) Migration Act 1958 (Cth), ss.425, 426A, 441G |
| Applicant: | SZNHV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 557 of 2009 |
| 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 |
| Solicitors for the Respondent: | Mr B. May, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 557 of 2009
| SZNHV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
The first respondent seeks an order dismissing the application before this Court filed on 9 March 2009 pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to attend this afternoon’s first court date. I note that the application filed on 9 March 2009 purports to be signed by the applicant and clearly identifies the time and date for the first court date as 2.15pm today.
In support of the first respondent’s application, the first respondent’s solicitor, Mr May, tended a letter dated 18 March 2009 from the first respondent’s solicitor to the applicant at the only address provided by the applicant on the application. The letter reminded the applicant of this afternoon’s first court date; informed the applicant that the applicant is required to attend that first court date; and, further informed the applicant that, if the applicant does not attend, the first respondent may seek an order dismissing the application and requiring the applicant to pay the first respondents legal costs without further notice. The letter enclosed, by way of service upon the applicant, notices of appearance in respect of each of the respondents and a response filed on behalf of the first respondent. Otherwise, the letter from the first respondent’s solicitor provides the applicant with helpful information about the process and provides the applicant with contact details of legal service providers and translators.
Mr May also tendered the bundle of relevant documents, marked Exhibit 2R.
The grounds of the applicant’s application are expressed to be as follows:
“1.The Tribunal exceeded its jurisdiction in making its decision to affirm the first respondent decision without considering the applicant’s claim. The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant.
2.Unfairness was involved in the failure of the Tribunal to send further communication to substantiate my claim of Refugee status and therefore there was a denial of natural justice.
3.The Refugee Review Tribunal failed to investigate my claims, specially the grounds of persecution in Pakistan. Therefore the Tribunal’s decision dated 17 February 2009 was effected by actual bias constituting judicial error.
4.The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.”
In support of the application, the applicant also filed an affidavit annexing the decision of the Refugee Review Tribunal (“the Tribunal”).
It is plain from the Tribunal’s decision record that the applicant was invited to attend a hearing before the Tribunal. However, the applicant failed to appear at the time and place at which the hearing was scheduled to commence. In the circumstances, the Tribunal purported to exercise its discretion pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”) to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it.
A brief perusal of the Tribunal’s findings and reasons makes clear that the Tribunal identified the claims made by the applicant in support of his protection visa application and noted that there were a number of issues that the Tribunal was of the view required more detailed evidence and explanation by the applicant. The Tribunal identified some of the issues it would have sought to explore further with the Applicant at a hearing. Ultimately, the Tribunal found that the applicant had not provided sufficient evidence to support his claims.
The letter inviting the applicant to attend a hearing is dated 17 December 2008 and contains a hand written file note that it was posted on 17 December 2008 with initials below it. I note that the address to which the letter was sent appears to be the address identified by the applicant in his application for review lodged with the Tribunal on 4 December 2008. In the circumstances, it would appear that the Tribunal’s letter was sent to the Applicant at the last address provided to the Applicant and was sent within three days of the date of the letter. Accordingly, it would appear that the Tribunal’s letter inviting the Applicant to come to a hearing was sent in accordance with s.425 and s.441G of the Act.
The grounds of the application by themselves do not clearly identify an error capable of review by this Court and none is apparent on the face of the Tribunal’s decision record. Although I reiterate that I am not intending to make a concluded finding in respect of whether or not the Tribunal’s decision is effected by jurisdictional error, it would appear that the applicant has no, or no reasonable, prospects of success.
I note that it is 2.50pm. The applicant has been called outside on three occasions and there has been no appearance by or on behalf of the applicant. I am satisfied that the applicant was aware of today’s first court date, or should have been aware, and for what ever reason has chosen not to attend.
In the circumstances, the orders sought by the first respondent are appropriate.
The First Respondent should send to the Applicant a copy of the orders made by the Court today, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 6 April 2009
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