SZNHV v Minister for Immigration and Anor (No.2) - [2009] FMCA 568

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHV v MINSTER FOR IMMIGRATION & ANOR (No.2)

[2009] FMCA 568

MIGRATION – Refugee Review Tribunal – practice and procedure – application to set aside order dismissing proceeding for non-appearance at first court date – whether applicant’s explanation for failure to appear is reasonable – whether the application had reasonable prospects of success.

Migration Act 1958 (Cth), ss.65(1), 424A(1), 424A(3)(b), 425, 426A
Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24
SZNHV v Minister for Immigration & Anor [2009] FMCA 301

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:

16 June 2009

Date of Last Submission:

16 June 2009

Delivered at:

Sydney

Delivered on:

16 June 2009

REPRESENTATION

Applicant appeared in person assisted by an Urdu interpreter

Solicitors for the Respondents:

Ms E. Warner-Knight, 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

EX TEMPORE

REASONS FOR JUDGMENT

This is an application in a case filed by the applicant on 26 May 2009 seeking an order pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (Cth) that the order of this Court made on 24 March 2009 dismissing the proceeding be set aside. The orders sought in the application in a case are opposed by the first respondent.
In support of the application, the applicant read an affidavit, affirmed by him on 25 May 2009. That affidavit is in the following terms:
“I am not represented by any solicitor, therefore I am not fully aware of the legal consequences of the Court hearing. Please consider my application in the light of above circumstances. I could not attend the Court on the designated date because I did not see the date written on my application.”
The applicant's affidavit was read without objection and the solicitor for the first respondent did not cross-examine the applicant in respect of the content of his affidavit. In the circumstances, I accept that the applicant's explanation for his failure to appear is as reflected in that affidavit.
However, as the Court explained to the applicant at the commencement of the hearing this morning, the Court must be satisfied that the explanation was reasonable in all the circumstances. The applicant confirmed to the Court that the application filed on 9 March 2009 was signed by him. In my view, it is the applicant’s responsibility to ensure that, having invoked the jurisdiction of the Court, he is aware of his obligation to attend Court in order to support his application. I note that the time, date and place of the scheduled first return date are clearly marked just above the signature of the applicant.
In the circumstances, I am not persuaded that the explanation offered by the applicant is a reasonable explanation for his failure to appear at a time scheduled clearly by the Court on the application filed 9 March 2009.
In any event, I now have regard to the prospects of success of the applicant’s application for judicial review.
The first respondent tendered the bundle of relevant documents marked Exhibit 1R in support of the submissions of the first respondent. Exhibit 1R makes clear that an invitation was sent to the applicant inviting him to come to a hearing to give evidence and present arguments. The letter was sent to the applicant at the address identified by him for receiving mail in his review application. The letter has a handwritten note on it stating that it was posted on the date of the letter and has a registered post number fixed to the letter. From that notation and the affixing of the registered post number, I draw the inference that the letter was posted to the applicant on that date. In the circumstances, and having regard to the contents of the letter, I am satisfied that the letter was sent in accordance with s.425 of the Migration Act 1958 (Cth) (“the Act”).
For whatever reason, the applicant failed to attend the scheduled hearing before the Tribunal at the scheduled time. Accordingly, the Tribunal’s decision record discloses that the Tribunal purported to exercise its discretion under s.426A of the Act to proceed to make its decision without taking any further step to enable the applicant to appear before it. The Tribunal’s decision record states that, following receipt by the Tribunal of the applicant’s response to hearing invitation form, the Tribunal received no further contact from the applicant.
The Tribunal was not satisfied on the evidence and material before it that the applicant met the criteria for being a refugee. The Tribunal identified various claims made by the applicant which it would have wished an opportunity to explore further with the applicant at a hearing in order to be satisfied that the applicant met the statutory criteria for being a refugee. Having found that it was not satisfied that the applicant has a well-founded fear of persecution for a Convention-related reason, the Tribunal affirmed the decision under review.
The grounds of the applicant’s application for judicial review filed, 9 March 2009, are expressed 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.”
Ground 1 makes a bare assertion that the Tribunal exceeded its jurisdiction and failed to make a finding as to the extent or nature of persecution suffered by the applicant. Ground 1 appears to misunderstand the role of the Tribunal in making its decision on the review. It is for the applicant to satisfy the Tribunal that he meets the criteria required under the Act for being a refugee (Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ). Section 65(1) of the Act mandates that if the Tribunal, as the relevant decision-maker, is not so satisfied, the applicant must be refused a protection visa.
Ground 2 alleges that there was a denial of natural justice because the Tribunal failed to “send further communication” to substantiate the applicant’s claim. Such a complaint does not disclose an error capable of review by this Court. If ground 2 is intended to allege that there was some information that the Tribunal was obliged to give to the applicant for comment pursuant to s.424A(1) of the Act, such an allegation is misconceived. The only evidence to which the Tribunal had regard was information given to it by the applicant for the purposes of his review. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
Ground 3 alleges that the Tribunal’s decision was affected by “actual bias” because it failed to investigate the applicant’s claims. There is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per the Court). The allegation is unsupported by particulars and is not, by itself, capable of substantiating the applicant’s bare allegation of “actual bias” (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [127] per the Court).
Ground 4 appears to be no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint seeks merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41 per Mason J).
In the circumstances, it does not appear that the Tribunal’s decision is affected by jurisdictional error of the type alleged by the applicant in the grounds of his application. Whilst I make no concluded decision in respect of whether or not the Tribunal’s decision is affected by jurisdictional error, in my view, the application before the Court has no, or no reasonable, prospects of success.
Accordingly, the application in a case filed by the applicant on 26 May 2009 is dismissed.
For the sake of completeness, I refer to the reasons given by me ex tempore on 24 March 2009 (SZNHV v Minister for Immigration & Anor [2009] FMCA 301) when the Court made the order dismissing the applicant’s proceeding for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

RECORDED : NOT TRANSCRIBED

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: 18 June 2009