SZODU v Minister for Immigration and Anor (No.2) - [2010] FMCA 207

FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

[2010] FMCA 207

MIGRATION – Refugee Review Tribunal – practice and procedure – whether applicant had reasonable explanation for failure to attend scheduled Court appearance – whether the applicant’s application for judicial review has any, or any reasonable, prospects of success.

Migration Act 1958 (Cth), ss.424A(1); 424A(3)(b); 424A(3)(ba)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZODU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 276 of 2010

Judgment of:

Emmett FM

Hearing date:

16 March 2010

Date of Last Submission:

16 March 2010

Delivered at:

Sydney

Delivered on:

16 March 2010

REPRESENTATION

Applicant appeared on her own behalf

Solicitors for the Respondent:

Ms K. Whittemore, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 276 of 2010

SZODU

Applicant

And

MINISTER FOR IMMIGRAITON & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application in a case filed by the applicant on 12 March 2010, seeking an order that the order made by the Court on 3 March 2010, dismissing the applicant’s proceeding for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 8 January 2010, be set aside.
The applicant was unrepresented this afternoon, although had the assistance of a Mandarin interpreter.
In support of her application the applicant read an affidavit sworn by her on 10 February 2010.
“1. I apply to the court to set aside an order where the order was made in the absence of my direction hearing on 3 March 2010.
2. The reason is when I lodge my application in person with my friend who can speak English well but the court system was down so I can not know the hearing when at that day. I receive all documents by mail couple days later and can not find anyone to translate to me. I only find out my hearing date on 3/03/10 1pm and I tried to ring the court and the solicitor from the department by a friend of my to later time of hearing or have a hearing on other day. I was tried my best to ask to judge not to discuss my case and give me another chance for direction hearing.
3. I will come for hearing if I know the time all because of the problem of language that made me can’t find out the hearing day on time.”
Under oath, the applicant confirmed to the Court that the content of her affidavit was true and correct and that there was no amendment or change to that evidence. The applicant was cross-examined.
The applicant maintained that she was not aware of the Court date on 3 March 2010 until 3 March 2010, because she had not been given a copy of the application when it was filed on 12 February 2010 because the Court’s computer system was down. She said that, when she received the application several days later, she went to visit a friend on 20 February 2010 who spoke English. She said that she asked her friend to read the document to her but that her friend did not do so and told her nothing about its contents.
The applicant said that the following day she took the document to another friend who did not speak English and that friend took the document to another person. The applicant said that this next person did not read the document to her until 3 March 2010. The applicant confirmed that she took no other step to have the document translated, for her assistance.
On 3 March 2010, a letter was received by my chambers from a person claiming to be the applicant. The terms of that letter are quoted in my reasons for judgment given on that day. Those reasons for judgement form part of these reasons and are as follows:
“1. The first respondent seeks an order that the application filed in this Court on 12 February 2010 be dismissed by reason of the applicant’s failure to appear at today’s scheduled first Court date. I note from the application that it would appear that the applicant has signed the application. The date for the first Court date is clearly expressed on the application to be today, 3 March 2010 at 2.00pm.
2. At 2.05pm a letter was received by my chambers from a person claiming to be the applicant. It is in the following terms:
“I have a hearing at 2pm on 03/03/12010, but I did not know that until I gave a friend of my Wendy, who can speak English, on the same day at about 1:30pm.
When I lodge the application on 12/02/2010, there was a problem in the court system, so I receive all the document, at about 20/02/10, but I can not understand any English, so I need to wait for my friend to come over & have a look for me.
Now I am working at near Chatswood today. I don’t think I can make it.
Would I be able to have another hearing on other day please, or if you need me I will come by train now, it might take about 1 hour.
Thank you, very much.”
3. I am also informed by the solicitor for the first respondent that she received a message from the applicant sometime this afternoon, at about 2.05pm that the applicant would be unable to appear at today’s hearing because she is working in Chatswood. I am not presently aware of the visa which presently applies to the applicant or the conditions of that visa.
4. It is the applicant’s responsibility to ensure that she is able to attend any scheduled Court event. It is the applicant who has chosen to file an application seeking orders of this Court and enlivening the Court’s jurisdiction. I do not regard the information in the applicant’s letter as a satisfactory explanation as to why the applicant is unable to appear at Court this afternoon.
5. I have also had regard to the grounds of the application. They are expressed as follows:
“1. The Tribunal did not accept the (sic) I am face a real chance of persecution for reasons of imputed underground Christian, a Roman Catholic or anti government political opinion should I return to China now or in the foreseeable future. The Tribunal made error in this finding.
2. The Tribunal is not satisfied that I am a person to whom Australia has protection obligations under Refugees Convention. The Tribunal did not refer to any independent information for the consideration of my application. The Tribunal failed to carry out its statutory duty.”
6. The grounds do no more but appear to disagree with findings made by the Refugee Review Tribunal. They make bare assertions without identifying any error capable of review by this Court.
7. The applicant was clearly aware of the scheduled Court event this afternoon. In the circumstances, I am satisfied that the order sought by the first respondent is appropriate.
8. Accordingly, the proceeding before this Court commenced by way of application filed on 12 February 2010 is dismissed with costs. I direct the first respondent to notify the applicant forthwith of the Orders made this afternoon and to provide to the applicant a copy of r.16.05 of the Federal Magistrates Court Rules 2001 (Cth).”
The applicant stated in her fax to this Court, dated 3 March 2010, that she was working near Chatswood and that she did not think that she could make it in for her hearing. That assertion was not part of her evidence today as to why she failed to attend on 3 March 2010. Otherwise, her evidence today is not substantially different to the explanation offered by the applicant in her letter, dated 3 March 2010. Her explanation was unsatisfactory on that occasion and remains so today. This is particularly so where the evidence from the applicant today is that she did not take any step, beyond those referred to in her evidence, to have the document she said she received from the Registry around 20 February 2010 read to her until 3 March 2010, despite being in contact with English speaking persons. I refer to paragraph 4 of my reasons for judgment delivered on 3 March 2010 and quoted above.
However, in considering the overall interests of justice, I have also had regard to the applicant’s complaints to this Court this afternoon about the Tribunal’s decision. I have already considered and dealt with the applicant’s grounds in her application in my reasons delivered on 3 March 2010. The applicant acknowledged that she received the reasons for judgment delivered on 3 March 2010 dismissing her application. In those reasons, I stated that the present grounds of her application appeared to do no more than disagree with findings made by the Tribunal and did not identify an error capable of review by this Court. There has been no draft amended application provided by the applicant today.
The applicant told the Court this afternoon that the Tribunal should have written to her to explain to her the concerns it had with her documents. The applicant provided to the Court this afternoon, in support of the merits of her application, the documents to which she referred and that she provided to the Tribunal. Those document are:
i)A letter, dated 28 November 2008, addressed to a Parish Priest, from the Vice Parish Priest, marked Exhibit 1A.
ii)A letter dated 12 December 2008, from Priest Joseph Chen, addressed to the Australian Government, marked Exhibit 2A; and
iii)11 photographs given by the applicant to the Tribunal for the purposes of her review, collectively marked Exhibit 3A..
I asked the applicant whether the Tribunal had told her that it would write to her in relation to those documents. The applicant confirmed that the Tribunal did not do so. The affidavit of the applicant filed in support of her initiating application, filed on 12 February 2010, annexed a copy of the Tribunal’s decision record. Consistent with the applicant’s evidence, there is no mention in that decision record of any promise by the Tribunal to write to the applicant. Otherwise, the applicant’s documents were given by her to the Tribunal for the purpose of her review. In those circumstances, they do not constitute information that otherwise would have enlivened any obligation, on the part of the Tribunal, pursuant to s.424A(1) of the Migration Act 1958 (Cth) (“the Act”), by reason of s.424A(3)(b) or (ba) of the Act.
In respect of Exhibits 1A and 2A, the Tribunal noted that it put to the applicant that fraudulent documents were readily obtainable in China, and noted the applicant’s response. The Tribunal noted that it considered the documents in support of the applicant’s claims and found that they were not reliable evidence that the applicant or her family members were, or would be, persecuted in China, as claimed.
To the extent that the photographs in Exhibit 3A depict the applicant in a nun’s robe and habit, the Tribunal accepted that the applicant is a “Christian/Roman Catholic”, although that finding was attenuated with some doubt.
The Tribunal noted that it had discussed generally with the applicant the country information relating to the prevalence of document fraud in China. It would appear in those circumstances that the Tribunal’s findings in relation to the documents were open to it on the evidence and material before it and for the reasons it gave. Ultimately, it found her not to be a witness of truth and found the applicant had no subjective fear of harm.
The Tribunal rejected the applicant’s core claims, having regard to her delay from the grant of her visa in December 2007 in China to her departure from China in May 2008.
The Tribunal noted that the applicant provided little detail, in respect of her alleged detention, and, ultimately, did not accept the applicant’s claims ever to have been arrested, detained or hospitalised. The Tribunal noted that the applicant did not make a claim of hospitalisation in support of her protection visa application, and made that claim, for the first time, before the Tribunal. The Tribunal also had regard to the seven month delay, by the applicant, in applying for a protecting visa application, after her arrival in Australia, and noted that she did so only days before her guardian student visa was due to expire.
The Tribunal had regard to independent country information before it that suggested that the applicant’s ability to leave China without difficulty was inconsistent with her claims to be of interest to the authorities in China. The Tribunal’s findings, including its adverse credibility findings, would appear to be open to the Tribunal on the evidence of material before it and the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). The Tribunal affirmed the decision under review.
Whilst I have not dealt with the applicant’s application for judicial review on a final basis, a fair reading of the Tribunal’s decision record suggests that the Tribunal understood the applicant’s claims and accurately summarised those claims. It invited the applicant to come to a hearing, which the applicant attended, and explored with the applicant at the hearing her claims, including her new claims. The Tribunal put to the applicant matters of concern it had about her evidence and noted her responses. The Tribunal also put to the applicant the country information which was inconsistent with her claims and noted her responses. The Tribunal then made findings which appeared to be open to it and be based on the evidence before it.
A fair reading of the Tribunal’s decision suggests that the Tribunal applied the correct law to the facts as it found them to be. The applicant has not identified any error on the part of the Tribunal that goes to the Tribunal’s jurisdiction.
The applicant has not identified any error capable of review by this Court this afternoon that has any, or any reasonable, prospect of establishing jurisdictional error on the part of the Tribunal, and none is apparent on the face of the Tribunal’s decision record.
For that reason, even if I was persuaded that the applicant’s explanation was in all the circumstances reasonable, there would little utility in making such an order. However, I find the applicant’s explanation to be unsatisfactory and unreasonable in all the circumstances.

RECORDED : NOT TRANSCRIBED

I should say that the applicant stated that she had another document that would prove that the Court’s computer system was down on 12 February 2010 and that she was not given the application on that date. She did not have that document with her. However, my reasons for finding the applicant’s explanation to be unsatisfactory, do not hinge on the fact that the applicant received or did not receive a copy of the application on 12 February 2010.

RECORDED : NOT TRANSCRIBED

Accordingly, the application in the case filed by the applicant on 16 March 2010, should be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 24 March 2010