SZOSX v Minister for Immigration

[2011] FMCA 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSX v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 127

MIGRATION – No appearance.

Migration Act 1958 (Cth), ss.91R(2), 477(1)
Federal Magistrates Court Rules 2001

Applicant: SZOSX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2357 of 2010

Judgment of: Raphael FM

Hearing date: 16 February 2011

Date of Last Submission: 16 February 2011

Delivered at: Sydney

Delivered on: 16 February 2011

REPRESENTATION

For the Applicant: Applicant in person

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 $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2357 of 2010

SZOSX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application seeking review of a Tribunal decision made on 23 September 2010. The application to this court should have been filed by 28 October 2010 but it was not filed until 1 November 2010. It is therefore outside the 35 day limit provided for in s.477(1) of the Migration Act 1958 (the “Act”) and the applicant needs leave to proceed with his application. 

2. The applicant has not attended court today.  It is known that he is resident in Western Australia but he did attend by telephone a directions hearing when the matter was set down for hearing in Sydney and was not heard to request that the matter be transferred to Western Australia.  I would also note that the applicant did not attend the interview he was offered by the delegate nor did he attend the Tribunal hearing.

3. Notwithstanding this, his claims for Australian protection arising from his Chinese ethnicity and Malaysian citizenship were carefully examined in the light of independent country information. The Tribunal concluded that any difficulties that he might suffer from being a person of Chinese ethnicity living in Malaysia were unlikely to fall within the definition of serious harm found in s.91R(2) of the Act.

4. The applicant was not in court at 10.15a.m. when the matter was due to start, nor was he present when his name was called outside the court at 10.30a.m.  Ms Rayment, who appears for the Minister, has tendered a letter sent by express post to the applicant at his last known address in Western Australia reminding him of the hearing today.  There is no indication that that letter was returned.

5. Had the applicant appeared I would have been reluctant to make an order under s.477 waiving the time limit and allowing the application to proceed because I do not consider that it would be in the interests of justice to do so.  The reason for that is having considered the Tribunal decision as a whole I am unable to find that it contains any jurisdictional error and the applicant’s complaint about it seems to me to be a complaint as to the merits.  I make these points so that the applicant can understand why, even if he should trouble the court again to set aside the order I am about to make, it is unlikely to be an application that would meet with success.

6. I dismiss this matter for non appearance pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  3 March 2011