SZOJJ v Minister for Immigration
[2010] FMCA 530
•13 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJJ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 530 |
| MIGRATION – Practice and procedure – failure of applicant to appear at hearing – dismissal pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). |
| Migration Act 1958 (Cth), s.65(1)(b) Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(c); 16.05 |
| Applicant: | SZOJJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 908 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 July 2010 |
| Date of Last Submission: | 13 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2010 |
REPRESENTATION
| There was no appearance by or on behalf of the Applicant |
| Solicitors for the Respondents: | Ms N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 908 of 2010
| SZOJJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order from the Court that the proceeding, commenced by way of application filed on 27 April 2010, be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the applicant’s failure to attend today’s scheduled hearing.
It is now 10.42am. There has been no communication received from or on behalf of the applicant either by the first respondent, the first respondent’s solicitors or the Court with any explanation as to why the applicant is not at Court this morning or to indicate that the applicant seeks an adjournment.
The applicant attended a directions hearing before me on 1 June 2010 and had the assistance of an Indonesian interpreter. On that occasion the applicant’s residential address was confirmed and leave was given to the applicant to file an amended application and evidence in support of his application, together with submissions. However, no document has been filed by or on behalf of the applicant either in accordance with those directions or otherwise.
At the directions hearing the matter was set down for hearing today at 10.15am.
The applicant was also referred to the Court’s Legal Advice Scheme. A letter, dated 21 June 2010, was sent to the applicant in relation to the panel advice scheme. The letter was addressed to the applicant at the address identified by the applicant as his residential address on the application, filed on 27 April 2010. The letter was returned to the Registry marked “Left Address/Unknown”.
The first respondent filed submissions on 2 July 2010 in support of the Response that the Tribunal’s decision is not affected by jurisdictional error.
The solicitor for the first respondent, Ms Johnson, tendered a letter, dated 1 July 2010, from the first respondent’s solicitor to the applicant. This letter was again addressed to the applicant at the address provided by the applicant. The Express Post envelope in which that letter was sent to the applicant was also tendered. The envelope is marked “Return to Sender” and states that the unit number does not exist. The letter and Express Post envelope together are marked Exhibit 1R.
I am satisfied that the applicant was aware of today’s hearing and, for whatever reason, has chosen not to attend.
I note that the grounds of the application make bare assertions and do not disclose an error capable of review by this Court. They are unsupported by particulars, evidence or submissions. They are as follows:
“1. The Tribunal failed to consider the whole of my case.
2. It is not reasonable for the Tribunal to make the finding just because I did not provide details of my experience.
3. The Tribunal made the finding which is biased.”
With the initiating application the applicant also filed an affidavit, sworn/affirmed 27 April 2010, annexing a copy of the Refugee Review Tribunal decision record dated 30 March 2010. The decision record makes clear that the applicant failed to appear at a hearing to which he was invited by the Refugee Review Tribunal (“the Tribunal”) and did not contact the Tribunal to seek to postpone the hearing or to give any reason why he could not attend at the scheduled time and date.
For those reasons, the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal had regard to the claims made by the applicant in support of his protection visa application that he suffered harm in Indonesia by reason of his Chinese ethnicity. However, the Tribunal found that:
“Given the lack of details in the applicant’s claims and the lack of opportunity to explore the details in these claims or their veracity, the Tribunal is not satisfied that the applicant or his family have suffered discrimination amounting to serious harm.”
It is for an applicant to satisfy the decision-maker, such as the Tribunal, that he meets the criteria for being a refugee. If the decision-maker, such as the Tribunal, is not so satisfied then s.65(1)(b) of the Act mandates that a protection visa must be refused. Whilst I make no final determination as to whether or not the Tribunal’s decision record is affected by jurisdictional error, no such error is apparent on the face of the decision record.
In the circumstances, I am satisfied that the orders sought by the first respondent dismissing the proceeding before this Court with costs should be made.
I further direct the first respondent to notify the applicant forthwith at the address provided by the applicant to this Court of the orders made today and to provide to the applicant a copy of Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) to the address provided by the applicant on the application as well as to the post office box provided by the applicant in the initiating process.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM
Acting Associate:
Date: 21 July 2010
0
0
2