SZQJQ v Minister for Immigration

[2011] FMCA 615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQJQ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 615

MIGRATION – PRACTICE & PROCEDURE – Refugee Review Tribunal – failure of applicant to appear at scheduled hearing – application for dismissal pursuant to Reg 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) – application for dismissal pursuant to Reg 13.10 of the Federal Magistrates Court Rules 2001 (Cth) – whether applicant’s application for judicial review of a decision of the Refugee Review Tribunal has any, or any reasonable, prospects of success.

Migration Act 1958 (Cth), ss.464A, 65(1), pt.8 div.2
Federal Magistrates Court Rules 2001 (Cth), Regs 13.03C(1)(c), 13.10

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Applicant: SZQJQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1311 of 2011

Judgment of: Emmett FM

Hearing date: 8 August 2011

Date of Last Submission: 8 August 2011

Delivered at: Sydney

Delivered on: 8 August 2011

REPRESENTATION

No appearance by the Applicant

Solicitor for the Respondents: Ms Jane Reardon (Minter Ellison)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1311 of 2011

SZQJQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 23 June 2011, be dismissed pursuant to Regulation 13.03C(1)(c) of the Federal Magistrates Court Rules (2001) (Cth) (“the Regulations”) by reason of the failure of the applicant to attend today’s scheduled hearing and pursuant to Regulation 13.10 of the Regulations by reason of the failure of the applicant to demonstrate that he has any reasonable prospects of success in the grounds identified in the application.

2. The grounds in the application are as follows:

   “1. The Refugee Review Tribunal took the irrelevant considerations into account in the exercise of the power.

   2. The Refugee Review Tribunal failed to consider the intensive relationship between Indonesian and Chinese.

   3. The Refugee Review Tribunal failed to independently investigate the applicant’s particular situation due to ethnic activity.”

3. On 13 July 2011, the applicant appeared before Registrar Ng of this Court.  On that occasion, leave was given to the applicant to file and serve an amended application by 1 August 2011 giving complete particulars of each ground of review relied upon and to file and serve any evidence upon which the applicant intended to rely by way of affidavit, by 1 August 2011.  The applicant was further directed to file and serve written submissions by 1 August 2011.  The first respondent was directed to file and serve written submissions by 5 August 2011.  The matter was set down for hearing today at 10:15am before me. I further note that the Orders which the applicant received on the day of the directions, and in respect of which he signed an acknowledgement of receipt of those Orders, informed the applicant that if he did fail to appear at any scheduled Court event, his application may be dismissed without further notice. 

4. I note that at the directions hearing the applicant appeared in person with the assistance of an Indonesian interpreter.  The applicant also elected at that directions hearing to participate in the Court’s Legal Advice Scheme and I note that on 25 July 2011, the applicant received written advice from a panel member in accordance with that scheme. The matter was set down for final hearing today before me.

5. However, there was no document filed by or on behalf of the applicant either in accordance with those directions or otherwise in support of the applicant’s application to this Court for judicial review of the decision of the Refugee Review Tribunal dated 18 May 2011. The first respondent filed submissions on 5 August 2011 in accordance with the directions made by the Court at the directions hearing.

6. It is now 10.50 am.  The matter was set down for hearing at 10.15am.  The matter has been called outside on at least two occasions, the last being at 10.47.  There has been no communication received by or on behalf of the applicant by this Court. I am informed by the solicitor for the first respondent, Ms Reardon, that there has been no communication received from the applicant seeking an adjournment of today’s scheduled hearing or for any other reason. 

7. Given that the applicant attended the directions hearing on 13 July 2011,  I am satisfied that the applicant is aware of today’s scheduled hearing and for whatever reasons has chosen not to attend.  The first respondent has not tendered any evidence to the Court this morning in the nature of correspondence to the applicant informing that in the event that he did not appear this morning that the first respondent would seek an Order from the Court that his application be dismissed or that the applicant’s grounds had no reasonable prospects of success. In the circumstances, it would not be appropriate to dismiss the proceeding pursuant to Regulation 13.10 of the Regulations.

8. In relation to the first respondent’s application to dismiss the applicant’s proceeding pursuant to Regulation 13.03C(1)(c), I have regard to the note to the Order made by the Court on 13 July 2011 advising the applicant that his application may be dismissed without further notice. I also note that the applicant failed to appear at an interview with the delegate of the first respondent and failed to appear at the Refugee Review Tribunal (“the Tribunal”) hearing having been invited by the Tribunal to do so. 

9. A copy of the Tribunal’s decision record dated 18 May 2011 is annexed to the affidavit of the applicant.  The first respondent read that affidavit in support of the first respondent’s application this morning.  The decision record discloses that on 1 February 2011, the applicant was invited to contact the department for an interview, however, failed to respond to the department’s letter or to attend any interview.  The decision record also discloses that on 31 March 2011, the Tribunal wrote to the applicant advising the applicant that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.

10. The Tribunal invited the applicant to present arguments at the hearing on 17 May 2011. The Tribunal advised the applicant that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal noted that no response was received from the applicant and after confirming the correctness of the address for service, the Tribunal proceeded to make its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal stated that it made that decision pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”). There is nothing on the face of the Tribunal’s decision to suggest that the decision was not made in accordance with s.426A of the Act.

11. Ultimately, the Tribunal was not satisfied on the evidence before it that the applicant has a well-founded fear of persecution in Indonesia for the reasons claimed within the meaning of the Convention.  The Tribunal noted that it had a number of relevant questions about the applicant’s claims that remained unanswered and that the applicant had not provided sufficient detail to enable the Tribunal to be satisfied that the applicant met the criteria for being a refugee.

12. None of the grounds relied upon by the applicant in this Court identify with particularity an error capable of review by this Court.  They make bare assertions of error and do not by themselves identify the jurisdictional error by which the applicant alleges the Tribunal’s decision is affected. 

13. As stated above the applicant had been given leave on 13 July 2011 to file and serve an amended application giving complete particulars of each ground of review relied upon as well as any evidence in support.  The applicant has also had the opportunity to meet with the Panel Adviser and receive free legal advice.  I note that at the directions hearing, the applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language. 

14. In having regard to the overall interests of justice as to whether the Court should make an order this morning dismissing the applicant’s application I have regard to the conduct of the applicant in failing to take any steps to identify or particularise further the grounds upon which he relies and his failure to appear.  I 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).

15. In the circumstances, on balance, I am satisfied that the application sought by the first respondent this morning is appropriate. 

16. Accordingly, the proceeding before this Court, commenced by way of application filed on 23 June 2011, should be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing. 

RECORDED    :    NOT TRANSCRIBED

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  9 July 2011