SZOLN v Minister for Immigration
[2011] FMCA 353
•9 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOLN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 353 |
| MIGRATION – Refugee Review Tribunal – whether Orders made by the Court dismissing the proceeding should be set aside pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) – whether the applicant’s explanation for his failure to appear at the scheduled hearing was reasonable in all the circumstances – whether the grounds relied upon by the applicant had any or any reasonable prospect of success. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A(1); 424A(3) Federal Magistrates Court Rules 2001 (Cth), Rule 16.05 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZOLN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1237 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 May 2011 |
| Date of Last Submission: | 9 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Katherine Whittemore (Sparke Helmore) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1237 of 2010
| SZOLN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application filed on 14 April 2011, the applicant seeks orders setting aside Orders made by this Court on 3 August 2010 dismissing the applicant’s proceeding, commenced by way of application filed on
3 June 2010, seeking judicial review of a decision of the Refugee Review Tribunal dated 7 May 2010 (“the Tribunal”).
The Court gave reasons on that date for dismissing the application, and they were essentially the failure of the applicant to appear at the scheduled hearing. The reasons were as follows:
“EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order, pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth), that the proceeding before this Court commenced by way of application filed on 3 June 2010 be dismissed, by reason of the failure of the applicant to appear at today’s scheduled hearing.
In support of the application the first respondent tendered a letter, dated 26 July 2010, addressed to the applicant, at the only address provided by the applicant to this Court. That letter enclosed by way of service a copy of the first respondent’s written submissions that were filed on 26 July 2010 in support of their Response, which was filed on 9 June 2010. The letter also informed the applicant that the matter was listed for hearing today at 10.15am before me, gave the address of the Court and stated that the applicant was required to attend Court on this occasion. The letter also informed the applicant that if the applicant did not attend today’s scheduled hearing the respondent would seek orders from the Court that the proceeding be dismissed, and that the applicant pay the legal costs of the first respondent.
It is now 11.05am. There is no appearance by the applicant. There has further been no communication received by this Court from the applicant, or anyone on behalf of the applicant. I am informed by counsel for the first respondent, Ms Mitchelmore, that neither her instructing solicitors, nor the first respondent have received any communication from the applicant about today’s proceeding, or otherwise.
I note that the applicant attended a directions hearing before a Registrar of this Court on 25 June 2010. On that occasion the applicant was given leave to file and serve an amended application and any evidence by way of affidavit, including any transcript of the Refugee Review Tribunal hearing, by 23 July 2010. The applicant was also directed that, if the applicant wished to rely on recordings of the Refugee Review Tribunal hearing, then notice must be given to the first respondent and the Court by 23 July 2010 to that effect. The applicant was also directed to file and serve written submissions by 28 July 2010. The applicant was referred to the Court’s legal advice scheme, and I note that telephone advice was provided to the applicant on 16 July 2010 and written advice forwarded on the same date in accordance with that scheme.
There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise. The Orders plainly set down the proceeding for final hearing today at 10.15am and provide the address of this court room. The applicant attended in person at the directions hearing, with the assistance of an interpreter.
In the circumstances, I am satisfied that the applicant was aware of today’s proceeding and for whatever reason has chosen not to attend. In the circumstances, I am satisfied that the order sought by the first respondent ought be made.
The Court then made the following Orders:
“THE COURT ORDERS THAT:
1. The proceeding before the Court, commenced by way of application filed 3 June 2010, is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to appear at today’s hearing.
2. The applicant pay the costs of the first respondent fixed in the amount of $4,800.00.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001.
3. The first respondent is directed to provide to the applicant forthwith, at the applicant’s address for service, a copy of these Orders together with a copy of Rule 16.05 of the Federal Magistrates Court Rules 2001.
NOTE: The letter tendered by the first respondent dated 26 July 2010, addressed to the applicant at the only address for service provided by the applicant to this Court, is marked Exhibit 1R. Exhibit 1R advised the applicant of today’s hearing date, time and place and informed the applicant that if the applicant did not attend, the first respondent would seek orders from the Court that the proceeding be dismissed with costs.”
In support of the applicant’s present application, the applicant read an affidavit sworn/affirmed by him on 14 April 2011 and filed on the same date. Relevantly, the affidavit stated as follows:
“1. I am an Indian Citizen arrived Australia and applied for protection visa under the refugee Convention. The delegate of the Minister and Tribunal member refused to grant my visa. I was not represented by any solicitor, therefore, I was not fully aware of the legal consequences of the court hearings, please consider my application in the list of above circumstances.”
Explanation for failing to appear at the hearing and for the delay in seeking to set aside Orders
The applicant was unrepresented before this Court and spoke English and did not need the assistance of an interpreter.
In exploring with the applicant this morning, his explanation for his failure to appear at the hearing on 3 August 2010, the applicant said that he had been confused and went to another Court building, then came to the correct Court building sometime after 11.00am and so went back home.
In relation to his explanation for the delay of nine and a half months in seeking Orders to set aside the Court’s Orders of 3 August 2010, the applicant said that the reason that he did not seek to set aside the Court’s Orders earlier was because he sought Ministerial intervention. He said that when he received the decision from the Minister to refuse to intervene, he thought he could then approach the courts.
By consent, the applicant gave sworn evidence to that effect.
In cross-examination, he agreed that he had appeared at the directions hearing held by a Registrar of the Court on 25 June 2010, that he spoke and read English and that the first respondent’s solicitor had taken him through the directions given on that occasion.
In cross-examination, the solicitor for the first respondent,
Ms Whittemore, took the applicant to Order 15 made on 25 June 2010, setting down the matter for final hearing. The Order made clear to the applicant the name of the Court room, the address of the Court room and that the hearing was before me. The applicant acknowledged that he had read those Orders and I am satisfied that he was taken through those Orders and, in particular, Order 15.
Ms Whittemore asked the applicant what he did when he discovered that he had arrived too late at the correct Court. The applicant responded that he arrived at 11.00am or 11.15am. Ms Whittemore asked him if he then contacted the first respondent’s lawyers, to which he replied, no. She further asked him whether he made any contact with the Court, to which he replied, no.
In considering the reasonableness of the applicant’s explanation for both his failure to appear on 3 August 2010, and his delay in filing his application on 14 April 2011 seeking to set aside the Court’s Orders made on 3 August 2010, in addition to the interests of the applicant, I also have regard to the interests of the community in having these administrative decisions finalised.
I am not satisfied that any of the explanations offered by the applicant are satisfactory or reasonable in the circumstances.
Plainly, the applicant was aware of the scheduled hearing on 3 August 2010 and had the address of the Court clearly identified in the Court’s Orders made on 25 June 2010. Even if one was to accept his explanation that he arrived late at Court, he took no step either to contact the first respondent or the Court. The applicant took no step, until some nine and a half months later on 14 April 2011 when he filed this application seeking to set aside the Court’s Orders made on 3 August 2010.
The applicant’s explanation that during that period of time he approached the Minister to intervene is understandable and a course of action open to the applicant. However, it is not a reasonable explanation for his delay in pursuing his legal rights through the Courts. He simply chose an alternative course to seeking to set aside the Court’s Orders made on 3 August 2010 dismissing his application seeking judicial review of the Tribunal’s decision.
Grounds of application
Further, I have regard to the grounds of the applicant’s application, filed on 3 June 2010, as follows:
“1. THAT THE TRIBUNAL MADE ERROR OF LAW BEING JURISDICTIONAL ERRORS IN THAT IT DID NOT PUT ANY WEIGHT TO THE RELIVANT (sic) DOCUMENTS. FOR EXAMPLE, MY FATHER DEATH CERTIFICATE AND BJP HYDERABAD LETTER.
2. THAT THE TRIBUNAL FAILED TO EXERCISE ITS JURISDICTION UNDER THE MIGRATION ACT THAT IT DID NOT CONSIDER MY INVOLVEMENT AND ACTIVITIES WITH THE BJP AS A YOUTH PRESIDENT IN THE DILSHUKNAGAR AREA OF HYDERABAD SINCE 2004.
3. THAT THE TRIBUNAL FAILED TO UPHOLD THE NATURAL JUSTICE TO ME. THE TRIBUNAL CITED INDIPENDENT (sic) COUNTRY REPORTS “A ARTICLE FROM THE TIMES OF INDIA” ON THE DECISION. THIS REPORT INLUNCED (sic) THE TRIBUNAL A LOT. HOWEVER THE TRIBUNAL DID NOT NOTIFIED ME ABOUT THE INDEPENDENT REPORT AND DID NOT ASK FROM ME ANY COMMENT. AS A CONSEQUENCE I WAS ADVERSELY AFFECTED BY THE THIS (sic) DECISION.”
He was given an opportunity to read each of the grounds and say whatever he wished in support of each of the grounds. The applicant had nothing relevant to say in identifying any error in the Tribunal’s decision that went to its jurisdiction.
In relation to Ground 1, the applicant complained that the Tribunal did not put any weight on his father’s death certificate or a letter from the Hyderabad branch of the Bharatiya Janata Party (“BJP”) in relation to his alleged position with them. However, the Tribunal’s decision record made clear that the Tribunal accepted that the applicant’s father died on the day stated in the death certificate. However, the Tribunal was not prepared to accept that the applicant’s father was killed as a result of political violence by opponents from the Congress Party, which may have included distant relatives, as stated on the death certificate.
In relation to the applicant’s letter allegedly from the Hyderabad branch of BJP confirming his role as president, the Tribunal’s decision record makes clear that the Tribunal’s concerns about that letter were explored with the applicant at hearing. The applicant’s responses were noted and considered by the Tribunal in its ultimate rejection of the truth of the matters asserted in that letter.
In relation to Ground 2, the allegation is that the Tribunal did not consider the applicant’s involvement and activities with the BJP as a youth president in his area since 2004. Again, the Tribunal’s decision record makes clear that the Tribunal considered in some detail the applicant’s claims of involvement in activities with the BJP, including as a youth president in his area since 2004. The Tribunal put to the applicant its concerns about that evidence, particularly in relation to various inconsistencies that it found to exist. It noted the applicant’s responses, however, it was ultimately not satisfied by those responses.
The Tribunal found that the applicant was not a witness of truth, although it did accept that he had been involved with the BJP at a suburban area level. The Tribunal rejected the applicant’s claims of past persecution and harm, and did not accept that there was a real chance that the applicant would experience serious harm, amounting to persecution, as a result of his general support for the BJP, if he were to return to India. The Tribunal accordingly affirmed the decision under review.
These findings would appear to have been open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. 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).
Ground 3 asserts that the Tribunal failed to give the applicant natural justice because it did not put to him country information to which it referred and upon which it relied. However, the information identified in Ground 3 was not information specifically about the applicant. Rather, the country information was information about a group of persons of which the applicant claimed to be one.
In the circumstances, there would appear to be no obligation on the Tribunal, pursuant to s.424A(1) of the Migration Act 1958 (Cth) (“the Act”) to give that information to the applicant for comment, either in writing or orally at the hearing. Such information is excluded from the obligations of the Tribunal by s.424A(3) of the Act.
In any event, the text of the information to which the Tribunal had regard and referred to in Ground 3, was not necessarily adverse to the applicant. Otherwise it is a matter for the Tribunal, the country information to which it has regard, and the weight it puts upon that information (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ).
In the circumstances, the applicant has not identified any error on the face of the Tribunal’s decision record that goes to the Tribunal’s jurisdiction, and none is apparent on the face of the Tribunal’s decision record.
Conclusion
In the circumstances, I am not satisfied that the applicant has identified any jurisdictional error in the grounds identified in his application filed on 3 June 2010. I am not satisfied that any of the grounds have any, or any reasonable, prospects of success. Further, I am not satisfied that there is any other jurisdictional error on the face of the Tribunal’s decision record.
In the circumstances, taken together with the unsatisfactory explanations by the applicant of his failure both to appear at the scheduled Court hearing on 3 August 2010; the unsatisfactory nature of his explanation for the nine and a half month delay since that time, in seeking to set aside those Orders; and, the failure to identify any jurisdictional error with any or any reasonable prospects of success, the applicant’s application filed on 14 April 2011 should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 16 May 2011
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