SZNRO v Minister For Immigration and Anor (No.2) - [2009] FMCA 1230

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRO v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2009] FMCA 1230

MIGRATION – Refugee Review Tribunal – practice and procedure – application to set aside order dismissing proceeding by reason of applicant’s failure to appear at scheduled hearing – whether the grounds of the applicant’s application have any reasonable prospect of success.

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:

9 December 2009

Date of Last Submission:

9 December 2009

Delivered at:

Sydney

Delivered on:

9 December 2009

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Ms E. Warner-Knight, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1455 of 2009

SZNRO

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

By an application filed by the applicant on 23 November 2009, the applicant seeks orders that the orders made by this Court on 26 October 2009, dismissing his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 May 2009, be set aside.
The applicant failed to appear on the scheduled date for the hearing of the applicant’s application for judicial review on 26 October 2009.
In reasons given by me on that day, I dismissed the application. I refer to the relevant parts of those reasons to this application as follows:
“On 1 September 2009, the applicant filed an amended application…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.
…
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 note that the applicant has agreed this morning that he received a copy of those reasons. There has been no draft further amended application provided to this Court this morning by the applicant in support of his application for reinstatement of his application for judicial review of the Tribunal’s decision, nor has the applicant been able to verbalise any other ground or complaint.
I explained to the applicant at the outset of the hearing that there were two issues to which the Court would have regard. The first is the explanation for his failure to appear at the scheduled hearing on 26 October 2009. The second is the utility in the Court making the orders that he seeks today.
In relation to the applicant’s explanation for his failure to appear, as I noted in the reasons on the last occasion, a certificate was received by this Court later on the hearing day, purporting to be a medical certificate in respect of the applicant given at Griffith Hospital on

26 October 2009. As I stated on that occasion, that certificate by itself is not sufficient to provide a satisfactory explanation. It does not address at all the capacity or ability of the applicant to have attended the hearing, nor, as I stated in my reasons then, did the applicant seek any formal adjournment for that reason. The certificate states as follows:
“Muscular low back injury. No neurological deficit.”
Today, the applicant read an affidavit affirmed by him on 20 November 2009 and filed on 23 November 2009, in which he stated the following:
“1. I could not attend the hearing on the designated date because of my sever (sic) illness. I have sent a doctor certificate to consider my request to make a date available for the hearing after couple of weeks.
2. I am not represented by any solicitor; therefore I am not fully aware of the legal consequence of the Court hearing. Please consider my application in the light of above circumstances.”
In cross-examination, the applicant confirmed that the doctor’s certificate to which he referred in paragraph 1 of that affidavit was, indeed, the certificate that was sent to the Court on 26 October 2009.
In sworn evidence, the applicant told the Court that the reason that he was unable to attend the hearing on 26 October 2009, was because he had severe stomach pains on the weekend prior to the hearing. He said that he had attended a private hospital during the week before for that reason. Clearly, the medical certificate provided by the applicant makes no reference to any stomach pains by the applicant, and refers only to muscular low back injury and no neurological deficit.
In cross-examination, the applicant stated that he needed to obtain a medical certificate. The gist of his evidence was that, because his stomach pains came and went, he needed to make some other medical complaint in order to obtain a medical certificate. His relatively unresponsive answer to cross-examination by the solicitor for the first respondent about that evidence was simply to continue to repeat that the doctor checked him over and gave the medical certificate.
I found the applicant to be an entirely unsatisfactory witness, and I place no weight at all on any explanation given by him for his failure to attend on the last occasion.
In the circumstances, there is no reasonable explanation for the applicant’s failure to attend.
Further, as stated above, there has been no further ground identified by the applicant, nor any draft further amended provided to the Court. In the circumstances, for the reasons given by me on 26 October 2009 and referred to above, the grounds of the application have no, or no reasonable prospects of success. Therefore, there would be no utility in the Court setting aside its Orders, made on 26 October 2009, even if I was satisfied that the applicant’s explanation for his failure to appear was reasonable in all the circumstances, which I am not.
Accordingly, the applicant’s application to set aside the Orders made by this Court on 26 October 2009 dismissing the applicant’s proceeding, is refused.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 10 December 2009