SZNVQ v Minister for Immigration
[2009] FMCA 1218
•19 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNVQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1218 |
| 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 application for judicial review had reasonable prospects of success. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.03C(1) |
| 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 (1986) 162 CLR 24 |
| Applicant: | SZNVQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1992 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 November 2009 |
| Date of Last Submission: | 19 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2009 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Ms K. Whittemore, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1992 of 2009
| SZNVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to r.13.03C(1) of the Federal Magistrates Court Rules 2001 (Cth) that the proceeding before this Court, commenced by way of application filed on 19 August 2009, be dismissed by reason of a failure of the applicant to appear at this morning’s scheduled hearing.
I note that the applicant appeared before me on 7 September 2009 at a first Court date directions hearing. On that occasion, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 19 October 2009, and was directed to file and serve any evidence by way of affidavit, including any transcript of the Refugee Review Tribunal (“the Tribunal”) hearing, verified by affidavit, by 19 October 2009.
The applicant was also directed to file and serve written submissions in support of the applicant’s application 14 days before today’s hearing.
At the directions hearing, the applicant was also given an opportunity to participate in the Court’s legal panel advice scheme and receive free legal advice. I note that the applicant had a telephone conference with a panel adviser on 5 October 2009. Also at that directions hearing, the applicant was provided with the contact details of legal services providers and translating and interpreting services in two documents headed in the applicant’s own language.
I note that on that occasion leave was given to the applicant to extend the time for the filing of the application, in circumstances where the application had been filed more than 35 days after notification to the applicant of the Tribunal’s decision.
On that occasion I explained to the applicant the difficulties that the applicant faced with the present grounds of the application as they were framed, I provided the applicant with a copy of the costs schedule of this Court, and explained to the applicant the consequences that may flow if the applicant was unsuccessful in the proceeding.
The matter was set down for hearing this morning at 10.15am.
There has been no document filed by or on behalf of the applicant, either in accordance with those directions or otherwise.
It is now 10.40am. The applicant has been called on three occasions outside this courtroom and there is no appearance by or on behalf of the applicant. I should note that the directions made by me on 7 September also advise the applicant that, if there was no appearance by or on behalf of the applicant at the time of any scheduled Court event, the application may be dismissed without further notice.
Counsel for the first respondent, Ms Clegg, tendered a letter, dated 11 November 2009, from Ms Clegg’s instructing solicitors and addressed to the applicant at the only address provided by the applicant to this Court. The letter also enclosed, by way of service, the first respondent’s written submissions. The letter reminded the applicant that the matter was listed for hearing today at 10.15am before me, and gave the address of the Court.
The letter also stated that if the applicant did not attend the hearing, the respondent would seek orders from the Court that the applicant’s matter be dismissed, and that the applicant pay the costs of the first respondent.
There has been no communication received from the applicant by this Court. I am informed by Ms Clegg that there has also been no communication received by or on behalf of the applicant from either the first respondent or the first respondent’s lawyers.
I note that the grounds of the application do not identify any error capable of review by this Court. The grounds are as follows:
“1. I attended the RRT hearing on 18 May 2009. In the hearing, the Tribunal was just interested in how I obtained the passport and left that country. Most questions were around this. He said “In the Tribunal’s opinion, this is illogical”.
2. I was not satisfied the Tribunal. He always said “In the Tribunal’s opinion, this is not plausible”.
3. The Tribunal said “In the Tribunal’s opinion, the applicant has not joined the Falun Gong organisation here in Australia. The applicant was not a member of the Falun Gong organisation and is still not a member in this country”.
4. So I think the Tribunal’s decision is unfair.”
The grounds make bare assertions. None of the grounds is supported by particulars, evidence or submissions. The grounds appear to seek merits review of the Tribunal’s decision, which this Court has no power to undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).
In the circumstances, the application for judicial review does not appear to have any reasonable prospects of success in establishing jurisdictional error on the part of the Tribunal.
In the circumstances, I am satisfied that the applicant was aware of today’s hearing and, for whatever reason, has chosen not to attend. The orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court, commenced by way of application filed on 19 August 2009, is dismissed pursuant to rule 13.03C(1) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to attend this morning.
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: 8 December 2009
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