SZNXE and Ors v Minister for Immigration and Anor (No.2)

[2009] FMCA 1164

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNXE & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2009] FMCA 1164

MIGRATION – Refugee Review Tribunal – practice and procedure – application to set aside order dismissing judicial review application by reason of failure of applicant’s failure to attend scheduled Court event – whether applicant had a reasonable explanation for failure to attend – whether application for judicial review had reasonable prospects of success.

Migration Act 1958 (Cth), ss.477(1), 477(2), 426A

First Applicant: SZNXE

Second Applicant: SZNXF

Third Applicant: SZNXG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2249 of 2009

Judgment of: Emmett FM

Hearing date: 4 November 2009

Date of Last Submission: 4 November 2009

Delivered at: Sydney

Delivered on: 4 November 2009

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents: Ms E. Warner-Knight, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2249 of 2009

SZNXE

First Applicant

SZNXF

Second Applicant

SZNXG

Third Applicant

And

MINISTER FOR IMMIGRATION &CITIZENSHIP

First Respondent

REFUGEE REIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an application in a case filed on 22 October 2009, the applicant seeks an order that the order made by this Court on 16 October 2009, dismissing his application filed on 16 September 2009, be set aside. 

2. In support of that application the applicant filed an affidavit sworn by him on 20 October 2009 and filed on 22 October 2009.  The relevant contents of that affidavit are as follows:

   “That the applicants/deponents date of hearing was fixed on 16/10/2009 at 10AM, the applicant went to Campbelltown to see one of his friend on 15/10/2009 at the late evening, the deponent had to sleep overnight at his friends place On 16/10/2009 the deponent/applicant along with his family members left for city to attend the Court, very unfortunately the car broke down on M5 Motorway, there was no any train station available the applicant had no road service from any road service provider with the result that the applicant/deponent was very late, the applicant reached in the afternoon in the Court, the applicant found out that the application for judicial review was dismissed due to non appearance, the delay was not within control of the applicant, the applicant had no means to communicate with the court. The applicants mobile phone was with out any credit, the applicant was unable to do any thing. The deponent was unable to hire the Taxi the deponent has no means of income, the applicant has explained all his circumstances in his Affidavit which is already attached with the applicants file. The applicant requests that the orders dated 16/10/2009 may kindly be set-aside the applicant may kindly be given a chance to reset his application for judicial review in the interest of justice.”

3. The solicitor for the first respondent, Ms Warner-Knight, sought to cross-examine the applicant on the contents of that affidavit. 

4. At the commencement of his evidence-in-chief to this Court, I asked the applicant if there was anything further that he wished to say that may be relevant to his failure to attend on the last occasion.  He said he had nothing further to add. 

5. Ms Warner-Knight put to the applicant that, in fact, he had rung her secretary at 2.13pm on 16 October 2009 and told her that he was too sick to attend the hearing.  The applicant did not agree that he said he was too sick. He said that he wished to seek Ms Warner-Knight’s advice and assistance on the next step he should take when he realised that he had missed his hearing. He said that he had made the call when he returned from his attempt to go to Sydney on the day of the hearing in his friend’s car.  He stated that the car broke down on the way.

6. Ms Warner-Knight read an affidavit, affirmed by her on 3 November 2009, annexing a copy of an email.  The email contains a telephone message taken by Ms Warner-Knight’s secretary asking Ms Warner-Knight to call the applicant as he was “too sick to attend hearing”.  Ms Warner-Knight submits that the email is a business record of her office and is therefore admissible.  I accept that submission. 

7. In relation to the disputed evidence, I note that the applicant said that he rang and had a conversation with Ms Warner-Knight’s secretary on 16 October 2009 in which he sought assistance.  However, I note that there is no mention at all of any such attempt by him in the affidavit sworn by him on 20 October 2009.  His evidence of his explanation was entirely unsatisfactory.  In the circumstances, I am entirely unsatisfied as to what was the reason that the applicant did not attend the scheduled final hearing.  I am, however, satisfied that the applicant was aware of his obligation to attend court on 16 October 2009.

8. In the circumstances, I am not satisfied that the applicant’s explanation for his failure to attend is reasonable. 

9. I have also had regard to the utility in making the order sought by the applicant. 

10. The initiating application filed by the applicant was filed in this Court on 16 September 2009. The decision of the Refugee Review Tribunal was dated 28 April 2009. Section 477(1) of the Migration Act 1958 (Cth) (“the Act”) requires that an application to this Court for judicial review in respect of a migration decision must be made within 35 days of the date of the migration decision. Clearly, the application was not filed within that statutory period. There is, however, a discretionary power in s.477(2) whereby the Court may extend the 35 day period if, inter alia, the Court is satisfied that it is necessary in the interests of justice to make such an order.

11. The applicant provided an affidavit in support of his initiating application to this Court, sworn 11 September 2009 and filed on 16 September 2009, in which he sought to explain why he had not received the decision of the Refugee Review Tribunal until 5 July 2009.  Even if the Court was to accept the applicant’s explanation as provided in his affidavit that he did not receive the decision until 5 July 2009, the application would still require an order by this Court extending the 35 day time period.  As I have said, it would have been necessary for the applicant to persuade the court that there was utility also in extending the 35 day period.

12. The decision of the Refugee Review Tribunal is annexed to the applicant’s affidavit, sworn 11 September 2009, and makes clear that the Applicant did not attend a scheduled hearing before the Refugee Review Tribunal. The Refugee Review Tribunal noted in its decision record that, on 31 March 2009, it wrote to the applicant advising him that it had considered all the papers relating to his application but was unable to make a favourable decision on that information alone.  The Refugee Review Tribunal then invited the applicant to give oral evidence and present arguments for hearing on 28 April 2009.  The letter advised the applicant that, if he did not attend that hearing and a postponement not granted, the Refugee Review Tribunal may make a decision on his case without further notice.

13. The Refugee Review Tribunal noted that the applicant failed to confirm his attendance at the hearing, and no further communication was received from him.  The Refugee Review Tribunal noted that, on 23 April 2009, a Refugee Review Tribunal officer checked the applicant’s records to ensure that the hearing invitation letter was sent to his correct address.  The applicant does not assert that the Refugee Review Tribunal’s record was not sent to his correct address, or that he did receive a letter of invitation. 

14. The applicant did not appear before the Refugee Review Tribunal on the day and at the time and place at which he was scheduled to appear on 28 April 2008 and did not contact the Refugee Review Tribunal to explain his failure to attend. In the circumstances, the Refugee Review Tribunal purported to exercise its discretion pursuant to s.426A of the Act to make its decision on the review without taking any further action to enable the applicant to appear before it.

15. There is no allegation by the applicant by way of pleading, evidence or submission to this Court to contend that the Refugee Review Tribunal was not entitled to exercise its discretion in accordance with s.426A of the Act.

16. The Refugee Review Tribunal considered the information and material that it had in support of the applicant’s application for a protection visa. However, The Refugee Review Tribunal was not satisfied, on the information before it, that the applicant had been persecuted for a Convention reason in the past or that there was a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future.

17. The Refugee Review Tribunal found the applicant’s information to be “insufficient”, to “lack detail” and that his claims were general in nature. No further information had been provided by the applicant to the Refugee Review Tribunal in support of his review application.  The Refugee Review Tribunal identified various areas in respect of which it would have sought further information from the applicant, had he attended a hearing.  The Refugee Review Tribunal found his claims to be expressed in vague general terms and that he had not provided essential details.

18. The grounds of the application filed by the applicant on 16 September 2009 in this Court are as follows:

    “1. The Applicant’s case was not considered by the Respondents.

    2. The Respondent have committed jurisdictional error.

    3. The Applicant’s case was not considered under Migration Act.”

19. In separate ex tempore reasons given by me on 16 October 2009, dismissing the applicant’s proceeding by reason of the applicant’s failure to appear, I stated, inter alia, as follows:

    “6. None of the grounds identify any error capable of review by this Court.  The application was supported by an affidavit of the applicant, sworn/affirmed 11 September 2009, annexing the decision of the Tribunal.  The Tribunal decision record makes clear that the applicant failed to attend the hearing before the Tribunal.”

20. I explained to the applicant that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions.  I explained to the applicant that the only issue before this Court was whether or not the decision of the Refugee Review Tribunal was affected by a mistake that went to its jurisdiction.

21. I explained to the applicant that the Refugee Review Tribunal must follow a particular statutory regime in inviting the applicant to come to a hearing, and that there are certain steps it must take before exercising its discretion under s.426A of the Act. I asked the applicant if there was any mistake that he was able to identify on the part of the Refugee Review Tribunal. The applicant was unable to identify any mistake. Neither am I.

22. In the circumstances, I am not persuaded that there is any or any arguable jurisdictional error on the face of the Refugee Review Tribunal’s decision record.  For those reasons, there would appear to be no utility in extending time to the applicant to file his application for judicial review in this case.

23. In the circumstances, to grant the applicant’s present application in a case would be futile.

24. For the reasons above and the unsatisfactory explanation by the applicant of his failure to attend the scheduled event on 16 October 2009, the applicant’s application today to set aside the order made by this Court on 16 October 2009 dismissing his proceedings should be dismissed.

25. Accordingly the application in the case filed on 22 October 2009 is dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  9 December 2009