SZRHR v Minister for Immigration (No 2)
[2013] FMCA 220
•14 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRHR v MINISTER FOR IMMIGRATION & ANOR (NO. 2) | [2013] FMCA 220 |
| MIGRATION – Application to restore matter dismissed for non attendance by applicant – consideration of medical evidence and prospects of success. |
| Federal Magistrates Court Rules 2001 |
| SZRHR v Minister for Immigration & Anor [2013] FMCA 104 NAKX v Minister for Immigration & Anor [2003] FCA 1559 NALM v Minister for Immigration & Anor [2004] FCAFC 17 NABE v Minister for Immigration & Anor (No 2) [2004] 144 FCR 1 Ngaronoa v Minister for Immigration & Anor [2007] FCAFC 196 Kumar v Minister for Immigration & Anor [1999] FCA 156 |
| Applicant: | SZRHR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 692 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 14 March 2013 |
| Date of Last Submission: | 14 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 692 of 2012
| SZRHR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 6 February 2013 this court dismissed an application by the applicant for review of a decision of the Refugee Review Tribunal on the grounds that the applicant had not attended. The matter was dismissed pursuant to Part 13 Rule 13.03(C)(i)(c) of the Federal Magistrates Court Rules 2001[1]; SZRHR v Minister for Immigration & Anor [2013] FMCA 104. A decision of the court that is made in the absence of a party may be set aside pursuant to Rule 16.05 of the Rules. On 28 February 2013 the applicant made an application which was effectively one to set aside the decision and set a new hearing date. In the application he said that he lived in Dubbo, he could not attend the hearing and asked for a new date. He said that he suffered from skin and back problems and was very sick on the day of hearing and just before the day of hearing. He said he suffered from bad flu from one day before the hearing and was so sick he could not go to the doctor. He also noted his lawyer had withdrawn very close to the hearing date. He attached a prescription from his doctor.
[1] “Rules”
The applicant also filed an affidavit on 28 February 2013 saying that he could not attend the court on 6 February because of a serious skin disease. He told that he had been frequently visiting his GP relating to ongoing health problems. He suffered from acute back pain. He told that he attended the surgery of another doctor in relation to his skin pain as well as nausea on 24 January. He said that on 6 February he was suffering from acute back pain as well as nausea and could not attend court. He says he could not obtain a medical certificate for that day because he could not attend any surgery due to his pain and sickness.
It is established that in making an application such as this an applicant must provide evidence that addresses the critical question of whether and if so why the medical question would prevent the applicant from coming to court and participating effectively in a court hearing; NAKX v Minister for Immigration & Anor [2003] FCA 1559 at [6] per Lindgren J; NALM v Minister for Immigration & Anor [2004] FCAFC 17 per Beaumont, Lindgren and Tamberlin JJ. The evidence which I have before me does not come within this category. A court can take nothing from the photocopies of prescriptions that were attached to the application. The medical certificates which are attached to the affidavit only say that on 24 January 2013 the applicant attended for a consultation with Dr Satchell, it gives no indication of what his complaint was or whether or not it would have prevented him from attending court on 6 February. I accept that Dr Satchell is a Dermatologist. The other medical certificate from Dr Haque is dated 26 February 2013 and states:
“I certify that I today attended applicant who was suffering from back pain since 10/11/12 and has been unfit for normal duties from 26 February 2013. I expect applicant will be unfit for duties for one day and will be fit to resume normal duties on 27/02/13.”
Once again this document gives no indication of the applicant’s ability to attend court and participate in proceedings on 6 February.
Mr Alderton, who appears for the respondent and did so at the original hearing, informed me that he had not received any indication from the applicant that he might not be able to attend and I can confirm that no telephone calls or other communication were made to the court about this. On these grounds alone I would propose to dismiss the application, however I should just say something about the second head of consideration when these matters come to this court. That is, the utility of granting the setting aside of the original order.
The applicant in this case is a citizen of Pakistan. He made a series of claims concerning persecution by the Taliban for himself and for his family. Whilst the Tribunal accepted that there was some Taliban presence in the area in which he lived it dismissed his claims on the basis of credibility. The findings and reasons commences with several paragraphs concerning the inconsistencies of the applicant’s earlier accounts and his evidence to the Tribunal. This includes the original statement he made, the evidence given to the delegate and inconsistencies within his own evidence to the Tribunal. Credibility is a matter for the Tribunal par excellence and I am unable to see that any jurisdictional error occurred in the Tribunal making those findings which were available to it on the evidence.
The applicant had a solicitor who filed on his behalf an Amended Application on 19 July 2012. That application had three grounds. The first made a claim that the Tribunal failed to consider the applicant’s fear of persecution from the fact that he claimed to be a young Pakistani male from Haripur that might be pressured to support the Taliban and that the Tribunal failed to consider his claim to be a member of a particular social group, namely “persons who hold views against Islamic fundamentalism, the Taliban and suicide bombings.” The difficulty the applicant would have in making that case is that he made no such claims so far as I can see from the court book.
The Tribunal did consider whether the Taliban or other group had any interest in the applicant and came to the conclusion that it did not. It also found that simply being from Haripur did not mean that there was a real chance that the applicant would suffer persecution for a convention ground on return to Pakistan. In my view, the claim that the Tribunal did not consider him as a member of a particular social group is not available to the applicant because it was one that depended for its exposure upon constructive or creative activity by the Tribunal; NABE v Minister for Immigration & Anor (No 2) [2004] 144 FCR 1 at [58]. The applicant would have been obliged to satisfy the Tribunal that there were such social groups as the ones he claimed to be a member of and, probably because he made no such claims, he was unable to do that.
The second ground claimed that the tribunal failed to apply the correct standard of proof for the purpose of assessing the applicant’s credibility, namely, the Briginshaw test. This is an argument which has been expressly rejected by the full court of the Federal Court in Ngaronoa v Minister for Immigration & Anor [2007] FCAFC 196. References to standards of proof are not really relevant in administrative matters; Kumar v Minister for Immigration & Anor [1999] FCA 156.
The third ground related to interpretation issues. These have been repeated by the applicant in some written submissions which he gave me this morning. Although the applicant was represented serially by two firms of solicitors, no evidence was filed concerning the quality of the interpretation, either before the Tribunal or before the delegate. It would have been necessary for this to have been done in order for any grounds such as this to be made out.
For the reasons given above I am of the view that there will be no utility in allowing this matter to be restored and given a hearing. The application is dismissed. The applicant is to pay the first respondent’s costs, in addition to the previous costs, which I assess in the sum of $500.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 28 March 2013
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