SZNVZ v Minister for Immigration
[2009] FMCA 1087
•5 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNVZ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1087 |
| 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 had reasonable prospects of success. |
| Migration Act 1958 (Cth), ss.91R; 91R(3) Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1); 13.03C(1)(c); 16.05 |
| 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 |
| Applicant: | SZNVZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2029 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 5 November 2009 |
| Date of Last Submission: | 5 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2009 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Counsel for the Respondent: | Mr P. Reynolds |
| Solicitors for the Respondent: | Ms A. Crittenden, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2029 of 2009
| SZNVZ |
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 24 August 2009, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.
RECORDED : NOT TRANSCRIBED
I note that the applicant attended a directions hearing before me on 7 September 2009. On that occasion, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of view relied upon by the 16 October 2009. On that occasion, I also explained to the applicant that the ground of her application made bare assertions of error unsupported by particulars.
On that occasion, the applicant was directed to file and serve any evidence by way of affidavit in support of her application, including any transcript of the Refugee Review Tribunal (“the Tribunal”) hearing by 16 October. The applicant was also directed to give notice to the Court and the first respondent by 16 October 2009 if she intended to rely on recordings of the Tribunal hearing. The applicant was directed to file and serve written submissions 14 days before today’s hearing.
At the directions hearing, the applicant was also referred to the Court’s panel advice scheme to receive legal advice which the applicant received on 8 October 2009. The applicant was also provided with the contact details of legal services providers together with translation and interpreting services in two documents headed in the applicant’s language.
The matter was set down for final hearing today at 10.15am before me. The directions informed the applicant that, in the event that 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.
The first respondent tendered a letter to the applicant, dated 29 October 2009, enclosing, by way of service, the first respondent’s outline of submissions and confirming to the applicant the time, date and place of today’s hearing. The letter also advises the applicant that if the applicant does not attend, either in person or by legal representative, then the first respondent will seek to have the matter dismissed with costs. The letter was sent to the only address identified by the applicant.
I note that there has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise.
It is now 10.37am. The applicant has not attended. Neither has there been any communication received by or on behalf of the applicant either by the first respondent’s solicitors or this Court.
I was also informed by counsel for the first respondent, Mr Reynolds, that his instructing solicitor, Ms Crittendon, had attempted to telephone the applicant on the mobile number provided by the applicant and Mr Reynolds informed the Court that there was an automated message that the person was unavailable.
I note that the ground of the application makes the bare assertion of bias and the bare assertion that the Tribunal failed to consider the applicant’s application in accordance with s.91R of the Migration Act 1958 (Cth) (“the Act”).
The ground of the application is set out as follows:
“I started practicing Falun Gong from 10 October 2001 with my high school friend each evening at home. After practicing, my skin allergy didn’t come back and my family was overjoyed. From then, I started to believe in the practice of Falun Gong. I have witnessed the benefit of Falun Gong practice and become a sincere believer. My experience of involving Falin (sic) Gong activities is true but the member of the Tribuanal didn’t accept the facts and refused my application for refugee. The Tribunal member had bias against me and failed to consider my application according to S91R of the Migration Act 1958.”
The ground of the application was unsupported by particulars, evidence or submissions.
In support of the initiating application, the applicant filed an affidavit, affirmed 21 August 2009 and filed 24 August 2009, annexing the decision record of the Tribunal.
I note that the applicant did attend the Tribunal hearing. The Tribunal’s decision notes that at the hearing the applicant’s claims were explored and matters of concern to the Tribunal were put to the applicant and the Tribunal noted her responses.
Ultimately, the Tribunal did not find the applicant to be a credible witness and comprehensively rejected the applicant’s claims of ever having been a Falun Gong practitioner.
The Tribunal also considered the applicant’s evidence of having read various Falun Gong publications in Australia and her claim of having practised in Australia on average three to four times a week. However, having regard to the Tribunal’s adverse credibility findings, the Tribunal was not satisfied that the applicant engaged in relevant conduct in Australia, in reading materials and practising Falun Gong, otherwise than for the purpose of strengthening her claim to be a refugee. Accordingly, the Tribunal noted that, pursuant to s.91R(3) of the Act, it must disregard that conduct. A fair reading of the Tribunal’s decision record would suggest that, in accordance with s.91R(3), indeed the Tribunal did disregard that conduct in considering whether or not the applicant has a well founded fear of persecution for a Convention related reason.
Otherwise, the ground of the application 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 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54).
As stated above, the allegation of bias is unsupported by particulars, evidence or submissions on behalf of the applicant. On the face of the Tribunal’s decision record, it does not appear that the Tribunal approached its task other than with a mind open to persuasion or that a reasonable bystander may apprehend that the Tribunal did so.
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 orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court, commenced by way of application, filed 24 August 2009, is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at today’s scheduled hearing.
I further direct the first respondent to notify the applicant forthwith of the Orders made today and to provide to the applicant both a copy of the Orders and a copy of r.16.05 of the Federal Magistrates Court Rules 2001 (Cth).
RECORDED : NOT TRANSCRIBED
I certify that the preceding twenty-two (22) 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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