SZNRO v Minister for Immigration
[2009] FMCA 1083
•26 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNRO v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1083 |
| 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 (Cth), r.13.03C(1)(c) Migration Act 1958 (Cth), ss.424; 424A; 424A(1); 424A(3)(a) |
| Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 |
| Applicant: | SZNRO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1455 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 26 October 2009 |
| Date of Last Submission: | 26 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2009 |
REPRESENTATION
| There was no appearance by or on behalf of the Applicant |
| Solicitors for the Respondent: | Ms L. Buchanan, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1455 of 2009
| SZNRO |
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 proceeding before this Court, commenced by way of application filed on 19 June 2009, be dismissed by reason of the applicant’s failure to appear at today’s scheduled hearing. The application by the first respondent is made by the first respondent’s solicitor, Ms Buchanan, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
In support of the application, Ms Buchanan tendered a letter on Australian Government Solicitor letterhead, dated 16 October 2009, addressed to the only address provided by the applicant on an amended application, filed on 1 September 2009. This letter was marked Exhibit 1R. Exhibit 1R enclosed the first respondent’s submissions and reminded the applicant of the date, time and location of today’s hearing. Exhibit 1R also informed the applicant that, if the applicant failed to attend today’s hearing, the first respondent would ask the Court to make orders dismissing the application and requiring the applicant to pay the first respondent’s legal costs without further notice.
It is now 10.50am. The applicant has been called on more than three occasions outside the courtroom. The hearing today was fixed for commencement at 10.15am, pursuant to Orders made by the Court on 4 August 2009.
I note that, on 4 August 2009, the applicant appeared before the Court in person with a Punjabi interpreter. The applicant was given leave on that occasion to file and serve an amended application, giving complete particulars of each ground of review relied upon, together with any additional evidence by way of affidavit, including any transcript of the Refugee Review Tribunal (“the Tribunal”) hearing, by 1 September 2009, and to file written submissions 14 days before today’s hearing.
On 1 September 2009, the applicant filed an amended application. However, the applicant filed no other documents in accordance with those directions in support of his application, or otherwise. The grounds of the application appear to make three complaints.
Ground 1 alleges that the Tribunal failed to comply with an undertaking that it gave to the applicant to make written submissions to the Tribunal about inconsistencies in his evidence which led the Tribunal to have concerns about the applicant’s credibility.
A copy of the Tribunal’s decision record is annexed to the applicant’s affidavit, filed on 19 June 2009, in support of his application to this Court. The Tribunal decision record does not make mention of the undertaking alleged by the applicant in ground 1. Such an allegation would otherwise require the support of evidence. As stated above, none has been filed in support of the applicant’s application.
Ground 2 appears to assert that the invitation to come to a hearing, sent to the applicant by the Tribunal on 5 March 2009, included a request for additional information which the Applicant asserts should have been made in accordance with s.424 of the Migration Act 1958 (Cth) (“the Act”). That issue has been recently settled by the High Court in Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [48] per the Court (French CJ, Heydon, Crennan, Kiefel and Bell JJ) and by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 at [20]-[21] per the Court (Stone JJ, Jacobson and Jagot JJ).
Ground 3 of the amended application asserts that the applicants were not given country information to which the Tribunal had regard, in breach of s.424A of the Act. The Tribunal’s decision record makes clear that the Tribunal discussed the country information to which it had regard and the information to which it had regard was about a class of persons of which the applicant claimed to be one. In the circumstances, such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
Whilst I make no final finding in respect of the Applicant’s grounds, they are fraught with difficulties as referred to above.
There has been no communication received by either this Court, the first respondent’s solicitors, or, indeed, the first respondent from the applicant in relation to today’s hearing, to seek an adjournment or otherwise.
A stated above, the matter was set down for hearing by me on 4 August in the presence of the applicant. The Orders made by the Court on that occasion were read by me to the applicant with the assistance of an interpreter. They also contained a notation that was read to the applicant that, in the event there was no appearance by or on behalf of him at the time of today’s scheduled hearing, the hearing may proceed in his absence and the matter dismissed without further notice.
In the circumstances, I am satisfied that the applicant should be aware of today’s hearing, and, for whatever reason, has chosen not to attend.
In the circumstances, the order sought by the first respondent is appropriate.
Document received post Orders made today
Subsequent to these Reasons having been delivered, a copy of a medical certificate from Griffith hospital in the name of the Applicant was received by fax at the registry of the Court in Queens Square at 9.01am. This information and that certificate were not brought to the attention of my Chambers until 11.46am this morning.
The certificate is dated 26 October 2009 and states that the Applicant was seen at Griffith hospital on 26 October 2009 and is unfit for work from 26 October 2009 to 26 October 2009 inclusive. The remarks on the certificate appear to say “Muscular low back injury. No neurological deficit.” The certificate was not accompanied by a letter from the Applicant seeking an adjournment for that reason. Nor does the certificate in any way address the ability of the Applicant to have attended today’s scheduled hearing. As stated above, there has been no communication received from the Applicant, or any person on behalf of the Applicant, either from the registry of the Court, my Chambers, the first respondent or the first respondent’s solicitors seeking an adjournment of today’s hearing for any particular reason or any contact whatsoever.
In the circumstances, had the medical certificate been received by the Court prior to the commencement of this morning’s hearing, my Orders would have remained the same.
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: 3 November 2009
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