SZQBS v Minister for Immigration
[2011] FMCA 614
•4 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQBS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 614 |
| MIGRATION – PRACTICE AND PROCEDURE – Application to set aside judgment dismissing application for judicial review by reason of failure of applicant to appear at scheduled hearing – explanation for non appearance – whether applicant’s application for judicial review has any, or any reasonable, prospects of success – whether the decision of the Refugee Review Tribunal is affected by jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth), Regs 13.03C, 16.05 |
| SZQBS v Minister for Immigration & Anor [2011] FMCA 415 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 |
| Applicant: | SZQBS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 554 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 August 2011 |
| Date of Last Submission: | 4 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2011 |
REPRESENTATION
| The Applicant appeared in person and was assisted by a Nepalese interpreter |
| Solicitors for the Respondents: | Ms Katherine Whittemore (Sparke Helmore Lawyers) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 554 of 2011
| SZQBS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is the applicant’s application in a case, filed on 7 July 2011, to set aside orders made by this Court dismissing the applicant’s proceeding before this Court for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 March 2011.
On 31 May 2011, this Court dismissed the proceeding commenced by way of application filed on 25 March 2011 for judicial review of the Tribunal’s decision pursuant to Regulation 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at the scheduled hearing. Reasons were given by me in SZQBS v Minister for Immigration & Anor [2011] FMCA 415 and those reasons are as follows:
“1. This is an application by the first respondent that the proceeding before this Court commenced by way of application filed on 15 March 2011 be dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s scheduled hearing.
2. On 14 April 2011 the applicant attended a directions hearing before me. On that occasion, the applicant was given leave to file and serve an amended application and any evidence in support by 23 May 2011. The applicant was also directed to file and serve submissions in support of his application by 27 May 2011. The applicant elected to participate in the Court’s legal advice scheme and I note that the applicant has duly participated in that scheme. In addition, the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
3. However, no documents have been filed by the applicant or on his behalf, either in accordance with those directions or otherwise.
4. At that directions hearing, the matter was set down for final hearing today at 10:15am. The address of the Court was clearly provided for the applicant in the order.
5. It is now 10.55am, and the matter has been called outside and there has been no appearance for the applicant.
6. In support of the application, the first respondent’s solicitor, Ms Johnson, tendered a letter dated 25 May 2011 from the first respondent’s solicitor addressed to the applicant at the applicant’s address for service. The letter was marked “Exhibit 1R” and enclosed by way of service a copy of the first respondent’s submissions.
7. The first respondent’s letter informed the applicant that the matter was listed for hearing today at 10.15am and again provided the address of the Court. The letter further informed the applicant that if he did not attend on this occasion the first respondent would seek orders from the Court that his matter be dismissed and that she pay the first respondent’s legal costs for the proceeding.
RECORDED : NOT TRANSCRIBED
8. Ms Johnson has also tendered to the Court this morning a facsimile from the applicant dated 31 May 2011 annexing a medical certificate. Those two documents together are “Exhibit 2R.”
9. Exhibit 2R is an unsigned document that is headed “Notice Of My Sickness” and states:
I am unable to attend the hearing today due to my sickness, so I would like the hearing to be postponed until I am well. I have a medical certificate which I have faxed together with this notice. Thank you.
10. The name of the applicant and the handwritten date 31 May 2011 is at the end of the facsimile.
11. The medical certificate, also faxed, is dated 30 May 2011 and purports to be signed by Dr K.C. Chan. It states:
This is to certify that I have examined (the applicant) and in my opinion she will be unfit for normal work from 30 May 2011 to 31 May 2011 inclusive due to viral illness.
12. There has been no communication received by this Court from the applicant seeking an adjournment of today’s scheduled hearing for any reason. The medical certificate is quite unsatisfactory. It does not address the critical question of whether, and if so why, the medical condition would prevent the applicant from travelling to Court and participating effectively in a Court hearing. Indeed, the certificate makes no mention of the applicant’s obligation to attend Court this morning and to suggest that she is unfit to do so for any specified and identified medical condition (See MZXJN v Minister for Immigration & Multicultural Affairs [2006] FCA 1624; NAKX v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1559).
13. In the circumstances, I am not satisfied that Exhibit 2R satisfactorily excuses the applicant from attendance at Court this morning. I am not persuaded that Exhibit 2R provides any reasonable excuse or explanation for the applicant’s failure to appear at today’s scheduled hearing.
14. I am satisfied that the applicant was aware of today’s hearing and has chosen not to attend. I am further satisfied that the orders sought by the first respondent this morning are appropriate in all the circumstances.
15. The proceeding before this Court commenced by way of application filed on 25 March 2011, should be dismissed with costs.”
In support of the application in a case, the applicant filed an affidavit affirmed by her on 27 June 2011. The substance of the affidavit is as follows:
“I was very sick on 31 May 2011, so I did not attend the scheduled hearing at 10am on 31 May 2011 before the Federal Magistrates Court. The medical certificate and notice of sickness were faxed to the Federal Magistrates Court Registry and to the Respondent in the morning before the hearing was concluded.
I do not agree with the purported judgement of Emmett Federal Magistrate on the ground of denial of procedural fairness. I want the hearing to be conducted in my presence because I am in need of justice in my case.
I have attached the evidence of my medical certificate and notice of sickness faxed to the Respondent and to the Federal Court Magistrates Registry on 31 May 2011 in annexure A, B.”
The medical certificate attached to the applicant’s affidavit is the same as the medical certificate referred to in the reasons for judgment given by me on 31 May 2011 in SZQBS v Minister for Immigration & Anor [2011] FMCA 415 and quoted above. The applicant’s affidavit annexes the same medical certificate which the Court considered in the reasons given on 31 May 2011 in which the Court found that the terms of the medical certificate were unsatisfactory and insufficient to explain the failure of the applicant to attend the scheduled hearing on that day.
The applicant was unrepresented before this Court this morning, although had the assistance of an interpreter. The grounds of the applicant’s application were interpreted for the applicant and she was invited to say whatever she wished in support of each of those grounds.
The grounds of the application are as follows:
“1. I strongly argue that I have a well founded fear of persecution on the basis of being a member of particular social group as a victim of rape by the Maoists due to my imputed political opinion in my country.
2. It is completely wrong analysis of the Tribunal Member that I could avoid harm by relocation within my country. It is not fair.
3. I believe the Tribunal member intentionally expressed reluctances in considering my case to be valued for the purpose of Convention reason.
4. I argue that the Tribunal member’s decision in my case has been vitiated by an error of law as the evidence that the Tribunal member relied upon is so unreasonable and inadequate the only inference is that the Tribunal member failed to satisfy all its statutory requirements in dealing with my case.
5. I claim that I am a refugee genuinely in fear of persecution and I argue that my fear of harm on return to Nepal is linked to the Convention reason of my imputed political opinion. The evidence was given by me was given frankly and without embellishment. I presented my story in a lucid manner and I argue that credibility should not be an issue.”
I explained to the applicant that one of the issues before this Court in considering her application was whether or not the applicant was able to satisfy the Court that the grounds of her application identified an issue with any, or any reasonable, prospects of success.
Ground 1 plainly does not assert any error on the part of the Tribunal.
In relation to ground 2, the applicant made no submission. In written submissions filed by the first respondent on 25 May 2011 the first respondent admits that there was no obligation on the Tribunal to consider whether the applicant could relocate within Nepal, having regard to its adverse credibility findings in respect of the applicant and its comprehensive rejection of her claims in support of the protection visa application.
Without making any final determination as to that issue, the first respondent’s submission is correct as a matter of law and the applicant has not been able to identify to this Court why that submission should not be accepted.
In relation to ground 3 of her application, the applicant again was invited to say whatever she wished in support. The applicant said only that she was a victim of Maoists in Nepal.
In relation to ground 4, the applicant said that she could not return to Nepal because the conditions there were adverse.
The applicant had nothing to say in relation to ground 5.
Grounds 3, 4 and 5 are unsupported by particulars, evidence or submissions. On their face, they appear to be cavilling with the findings and conclusions of the Tribunal. Such complaints would invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The Tribunal’s credibility findings are a matter par excellence for the Tribunal, including any adverse credibility findings (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The first respondent submits that the Tribunal’s findings were open to it on the evidence before it. There is nothing that the applicant has said this morning to suggest that the first respondent’s submission should not be accepted, nor is there anything on the face of the Tribunal’s decision record to suggest that the Tribunal’s findings, including its adverse findings, were not open to it on the evidence and material before it.
In the circumstances, the applicant has not identified any issue with any, or any reasonable, prospects of success in establishing that the decision of the Tribunal was affected by jurisdictional error. I have regard to that matter in considering the overall interests of justice as to whether the orders sought by the applicants this morning should be made.
In considering the overall interest of justice one must also have regard to the interests of the community in having these administrative decisions finalised (see Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495 ([15] and [16] per McHugh J).
The applicant has not provided any satisfactory explanation for her failure to appear on the last occasion, nor has she identified a jurisdictional error in the Tribunal’s decision with any, or any reasonable, prospects of success.
In the circumstances, the application in a case, filed on 7 July 2011, should be dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 9 August 2011
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