SZOKB v Minister for Immigration

[2010] FMCA 790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKB v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 790

MIGRATION – Review of RRT decision – application for reinstatement where matter had been dismissed due to non-appearance – whether reasonable explanation for failure to attend – whether reasonable prospects of success.

Federal Magistrates Court Rules 2001

Applicant: SZOKB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1018 of 2010

Judgment of: Raphael FM

Hearing date: 8 October 2010

Date of Last Submission: 8 October 2010

Delivered at: Sydney

Delivered on: 8 October 2010

REPRESENTATION

For the Applicant: No appearance

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1018 of 2010

SZOKB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application to reinstate a matter that was dismissed pursuant to Part 13, r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 on 4 August 2010.  The applicant had brought proceedings seeking review of a decision of the Refugee Review Tribunal made on 13 April 2010.  He did not attend the hearing, hence its dismissal.  The application to reinstate the matter was filed with this Court on 17 September 2010, a further 44 days after the original decision.  The applicant filed with his application an affidavit in which he stated:

   “I was unable to attend the hearing in the Court on 4 August 2010 because my car was in an accident near St George, Queensland.”

   There was annexed to the affidavit a tax invoice from a company known as Maranoa Mechanic, a RACQ road service contractor.  That invoice was dated 22 July 2010 and refers to towing a vehicle.  In response to a question from Mr White, who appears for the respondent, the applicant stated that the accident to his car occurred on 22 July 2010.  This was two weeks prior to the scheduled hearing.

2. In order to persuade the Court that it should exercise its discretion to reinstate a matter that has been dismissed for non-attendance, an applicant must be able to explain to the Court why he was unable to attend a hearing, and the Court should be satisfied that the reason put forward indicates a genuine ground for non-attendance.  The applicant must also be able to satisfy the Court that it is in the interests of justice to reinstate the hearing and, in this regard, the Court would look at the grounds put forward for review to see whether or not it should exercise its discretion to hear the claim. 

3. In regard to the first matter, I am unable to say that the applicant’s reason for non-attendance at the hearing would meet the criteria that is normally applied.  The applicant was aware of the hearing date, because he had attended a directions hearing before a Registrar in Sydney.  He appears to have decided to remove himself into Queensland for the purposes of obtaining employment, but he did not inform the Court of this. 

4. The accident happened some two weeks before the hearing date and the applicant did not advise the Court that he would be unable to attend.  If he had done so, arrangements may well have been put in place for him to appear by telephone, as he has today.  The applicant said in evidence that all his details were in Sydney, he even lost his mobile and he had no papers, but I find it unlikely that he would have been unable to make contact with people in Sydney so that he could obtain sufficient information about the Court hearing within that two-week period to advise the Court of his predicament. 

5. Notwithstanding the Court’s lack of satisfaction about the excuse put forward, it would, in an appropriate case, pass over this failure by the applicant had there been a clear intimation from the papers before the Court that the Tribunal may have fallen into jurisdictional error in the manner in which it reached its decision.  In accordance with its usual practice, the Court has read the decision record and the applicant’s application.  The grounds of that application are two-fold.  The first is:

   “The decision made by RRT is jurisdictional error.”

   The second is:

   “Breach of procedural fairness.”

   Neither of these grounds indicate, with any particularity, a matter that the Court would regard as a jurisdictional error.

6. The Court notes that the applicant had three hearings before the Tribunal. It came to the conclusion that he could not be considered a witness of truth.  This is a matter for the Tribunal “par excellence”.  One of the major reasons why the Tribunal considered that the applicant was not a person to whom Australia owed protection obligations and who did not have a well-founded fear of persecution for a Convention reason was that he had returned to India on no less than four occasions before applying for a protection visa:

   “The Tribunal is of the view that the inconsistencies in the applicant’s evidence and him returning to India on four occasions for significant periods lead the Tribunal to find that the applicant has not suffered serious harm in India in the past and there is not a real chance he will suffer serious harm if he returns to India now [or] in the foreseeable future.” [81] [CB 103]

7. In these circumstances, the Court is not minded to grant the application and reinstate the matter. The application is dismissed. The applicant shall pay the first respondent’s costs assessed in the sum of $500.00.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  14 October 2010