SZQAG v Minister for Immigration
[2011] FMCA 372
•19 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQAG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 372 |
| MIGRATION – PRACTICE & PROCEDURE – Refugee Review Tribunal – failure to appear by Applicant at scheduled hearing – whether applicant’s application for judicial review has any, or any reasonable, prospects of success – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). |
| Migration Act 1958 (Cth), ss.65(1); 426A Federal Magistrates Court Rules 2001 (Cth), Reg.13.03C |
| Applicant: | SZQAG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 448 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 May 2011 |
| Date of Last Submission: | 19 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2011 |
REPRESENTATION
| No appearance by the Applicant: |
| Counsel for the Respondents: | H P T Bevan |
| Solicitors for the Respondents: | J Pinder (DLA Piper) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 448 of 2011
| SZQAG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth) that the proceeding before this Court commenced by way of application filed on 25 March 2011 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 February 2011, be dismissed by failure of the applicant to appear at today’s scheduled hearing. In support, the first respondent read the affidavit of Emily Baggett affirmed on 19 May 2011. The affidavit annexed various documents, including service of the first respondent’s outline of submissions. The affidavit otherwise recites the various attempts made by Ms Baggett to serve the applicant at the address provided by him in his application, being 66/309 Castlereagh Street.
Ms Baggett’s affidavit is as follows:
“ I, Emily Baggett, of 201 Elizabeth Street, Sydney, New South Wales and Solicitor, affirm:
1 I am a Solicitor employed in the firm DLA Piper Australia, solicitors for the First Respondent in these proceedings.
2 On 5 May 2011, I made arrangements for my affidavit affirmed on 5 May 2011, to be served at the applicant’s address for service, by courier. At 4:40pm on 5 May 2011, I was contacted by the courier who said words to the following effect: “I was not able to find a physical address of 66/309 Castlereagh Street Sydney New South Wales and I was unable to deliver the material.”
3 The unserved affidavit was returned to my office.
4 On 6 May 2011, I caused my affidavit affirmed on 5 May 2011 to be sent by express post to the address 66/309 Castlereagh Street Sydney New South Wales 2000 (express post number 007082033094). Annexed hereto and marked ‘A’ is a copy of the covering letter with the express post sticker.
5 On 18 May 2011, I attended 309 Castlereagh Street, Sydney, New South Wales to see if I could find 66/309 Castlereagh Street.
6 At 309 Castlereagh Street, Sydney, New South Wales, I saw a shop called H20 Toko. I could not see any other entrances for apartments, or any mailboxes at that address. The shop H20 Toko had the number “309” in the window, and did not include a separate shop number.
7 Next door to the shop, I saw the lobby of the Regis Apartments which included rows of mailboxes. I approached a man working at the reception desk in the Regis Apartments, at 303-307 Castlereagh Street. I said words to the following effect to the man: “Is this apartment block or those mailboxes identified as 309 Castlereagh Street. I am trying to track down where to send mail to a person who has listed a unit number at 309 Castlereagh Street as their address, but I cannot seem to find it”.
8 The man said: “No. 309 Castlereagh Street is the shop next door. They operate a hush hush mailbox service and they receive mail for different people there, maybe people who do not have a proper address.”
9 I then went to the front counter of H20 Toko and said words to the following effect: “Do you receive mail for different people at this address?”
10 The man said words to the following effect: “yes we do. We provide mail boxes for people. They get mail sent here and they come and collect it”.
11 I said words to the following effect: “Do you receive the mail for 66/309 Castlereagh Street and does Australia post deliver mail for that address here?”
12 He said “Yes.”
13 I said: “How do the people get their mail?”
14 The man said words to the following effect: “The people have to come in and get it Sometimes they do not come for a long time.”
15 The man showed me a pile of mail he had behind the counter, which had a variety of unit numbers on the different items. I saw items addressed to 66/309 Castlereagh Street, Sydney, New South Wales and 11/309 Castlereagh Street, Sydney New South Wales in the pile. I also saw a number of Australia Post Registered Post slips in the pile, including one addressed to 11/309 Castlereagh Street, Sydney, New South Wales.
16 I said: “What happens to these registered post slips?”
17 The man said words to the following effect: “The people have to come and collect their mail and if they do not collect it time (sic), Australia Post might send the mail back.”
18 On 18 May 2011, I arranged for the first respondent’s written submissions to be served by courier to 66/309 Castlereagh Street Sydney, New South Wales, with an instruction that the courier deliver the material to the address regardless of unit number. Annexed hereto and marked ‘B’ is a copy of the covering letter and submissions. Annexed hereto and marked ‘c’ is a copy of the courier receipt.
19 On 19 May 2011 I was instructed by an officer in the Department of Immigration and Citizenship and believe that there are seven other known matters before the Federal magistrates Court in which an applicant has provided an address for service to the Court or the Refugee Review Tribunal of a unit number at 309 Castlereagh Street, Sydney, New South Wales. The proceedings numbers include SYG473/2011, SYG2402/2010, SYG354/2011 and SYG372/2011.
20 I was also instructed and believe that there have been three past matters before the Federal Magistrates Court which have involved applicants that have provided an address for service to the court or the Refugee Review Tribunal of a unit number at 309 Castlereagh Street, Sydney, New South Wales.”
I am informed by counsel for the first respondent, Mr Bevan, that there has been no communication received by or on behalf of the applicant in respect of this proceeding either seeking an adjournment of today’s proceeding or otherwise. Similarly, there has been no contact made by the applicant with the Court. I note that the applicant appeared in person at the directions hearing before me on 31 March 2011 with the assistance of an Indonesian interpreter. On that occasion, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 28 April 2011 as well as evidence by way of affidavit by 28 April 2011.
The applicant was also directed to file and serve submissions in support of the application by 12 May 2011. The applicant elected to participate in the Court’s legal advice scheme and I note that advice was provided to the applicant by telephone by a panel adviser in accordance with that scheme.
RECORDED : NOT TRANSCRIBED
At the directions hearing on 31 March 2011, the matter was set down for final hearing on 26 May in this courtroom before me. However, on 5 May 2011 that hearing date was vacated and the matter was re-listed for hearing on 19 May 2011. A letter was sent to the applicant from the Court dated 5 May 2011 informing him that the matter was relisted for hearing today at 10.15am. The letter was addressed to the applicant at the only address provided by him, being 66/309 Castlereagh Street, Sydney.
It is now 10.45 am, the matter having commenced at 10.30am. The matter has been called outside prior to 10.30am on at least three occasions and there has been no appearance by the applicant.
There has been no document filed by the applicant since 31 March 2011, either in accordance with the directions of the Court or otherwise.
The grounds of the initiating application filed on 14 March 2011 are in the following terms:
“1. The Tribunal failed to consider whether a law of general application had a discrimination impact on the applicant.
2. A breach of the rules of natural justice occurred in connection with the making of the decision.
3. The applicant was denied procedural fairness in connection with the making of the decision.”
The grounds are unparticularised and make bare assertions that do not disclose an error in themselves capable of review by this Court.
The applicant, in support of his initiating application filed an affidavit on 14 March 2011 annexing the decision of the Tribunal dated 9 February 2011. That decision made clear that on 10 January 2011, the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to the applicant’s review application but was unable to make a favourable decision on that information alone. The letter went on to invite the applicant to appear at a hearing to give oral evidence and present arguments at the hearing on 8 February 2011.
The letter further advised the applicant that if he did not attend the hearing and a postponement was not granted that the Tribunal may make a decision without further notice to the applicant. The Tribunal noted that a letter of invitation was sent by registered mail to the applicant’s last address for service and was returned to the Tribunal unclaimed on 4 February 2011.
The Tribunal noted that the applicant did not appear before the Tribunal on the day and at the time at which he was scheduled to appear. In the circumstances, the Tribunal exercised its discretion pursuant to s.426A of the Migration Act 1958 (Cth) to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it.
There is nothing on the face of the Tribunal’s decision record to suggest that that exercise of discretion was made otherwise in accordance with law. I further note that the Tribunal ultimately was not satisfied of the claims made by the applicant. The Tribunal noted that because of the failure of the applicant to appear at the hearing the Tribunal did not have the opportunity to explore with the applicant his claims and in particular the matters of concern that the Tribunal had regarding his past and further circumstances.
The Tribunal found the applicant’s claims to be lacking in detail and was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.
It would appear from the Tribunal’s reasons that those findings and conclusions were open to the Tribunal on the evidence and material before it and for the reasons it gave.
In circumstances where the Tribunal was not satisfied that the applicant met the criteria for being a refugee, s.65(1) of the Migration Act 1958 (Cth) mandates that in such circumstances a decision-maker such as the Tribunal must refuse the applicant a protection visa.
As stated above, the grounds in the application do not identify a jurisdictional error on the part of the Tribunal and none would appear to be apparent on the face of the Tribunal’s decision record.
I am satisfied that on the evidence before me the applicant was aware of today’s hearing and for whatever reason has chosen not to attend. I am also satisfied that the Orders sought by the first respondent are appropriate.
Accordingly, the proceeding before this Court by way of application filed on 25 March 2011 should be dismissed with costs.
RECORDED : NOT TRANSCRIBED
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 25 May 2011
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