SZRNV v Minister For Immigration and Anor (No.2)
[2012] FMCA 769
•8 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRNV v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2012] FMCA 769 |
| MIGRATION – Application in a case – application dismissed. |
| Migration Act 1958 (Cth), ss.422, 422B, 424AA, 424A, 425, 476 Federal Magistrates Court Rules 2001, r.13.03C |
| SZRNV v Minister for Immigration & Anor [2012] FMCA 553 |
| Applicant: | SZRNV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1265 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 8 August 2012 |
| Date of Last Submission: | 8 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application in a Case made on 10 July 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1265 of 2012
| SZRNV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me today an Application in a Case made on 10 July 2012. That application seeks that orders made by this Court on 27 June 2012 be set aside. Those orders relate to an application made by the applicant to this Court on 8 June 2012 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 10 May 2012 and pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
Background
When the original application was filed in this Court the Registry allocated 27 June 2012 at 9.15 am as the occasion for the first Court date. That notation was put on the face of the application by an authorised officer of the Court.
When the matter was called on that date and at that time there was no appearance by the applicant. No adjournment had been sought. Indeed, nothing had been heard from the applicant, or anyone on his behalf, as to any difficulties in attending at that time.
On that day the respondent Minister, through his legal representative, sought that the application be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”). On what was before me, I was satisfied that the Minister’s application should be allowed and orders were made dismissing the applicant’s original application (see SZRNV v Minister for Immigration & Anor [2012] FMCA 553).
Before the Court
Before the Court today, the applicant appeared in person. Ms N Johnson appeared for the respondent Minister. The Court had before it a bundle of relevant documents, the Court Book (“CB”), filed by the Minister.
I note that the Application in the Case, on its face, states that it is supported by the applicant’s affidavit dated 10 April 2012. However, it is quite clear that that reference is to the affidavit made by the applicant on 10 July 2012 which accompanied the Application in the Case.
It must be said that the applicant today was greatly unhelpful in support of his Application is a Case. From the bar table all he could say in support of his application was that he was not satisfied with the decision of the Tribunal, and that the Tribunal made its decision without investigation. By way of explanation as to his failure to attend on the previous occasion before the Court, the applicant stated that he did not attend because his migration agent did not tell him that the matter was “on in Court”.
It is at this point that the applicant became particularly unhelpful and, it must be said, unhelpful in his own cause. The applicant claimed he was unable to identify the agent whom he said had assisted him and who failed to tell him of the previous Court event. He then made some vague and unclear references as to who it may be. This left his explanation in an unsatisfactory state. He claimed not to know the location of the agency, but then said it may have been at Auburn. When put to him whether this was the agency that had assisted him before the Tribunal (CB 59 – there is the notation in the application to the Tribunal of a particular migration agent and an agency in Auburn), he said it was not.
In any event, whether he was unable to truly remember, or whether he chose not to identify it to the Court, the Court was left with a situation where the applicant claimed that his migration agent had prepared all the documents that had been filed in Court in these proceedings. Further, that despite having signed the documents, they had been prepared by his agent and he was unaware of their contents.
I should note of particular concern is the affidavit of the applicant of July 2012 which asserts that (at [2]):
“My first Court date was scheduled on 27 June 2012. However I failed to attend due to my unexpected medical conditions.”
That conflicts with what the applicant told the Court today as to his failure to attend. That account (not given in any evidentiary context) is that his migration agent prepared all his documents, and he just signed them.
I should also note that, in light of that, I have great concern as to the process by which the applicant’s affidavit of 10 July 2012 was drafted, sworn or affirmed (it is not clear which) before a witness who professes to be a JP. That person is described on the face of the affidavit as “Yao Li”, “JP # 190625”. That person may or may not be “old Li” whom, at one point, the applicant said may have been the migration agent who assisted him.
Further, I note that that affidavit contains a certification from a person, “Xing Gao”, who is described as an interpreter. That individual certifies that the affidavit has been “truly interpreted” to the applicant, and that the oath or affirmation (whichever it was) was administered. The applicant claims to have no knowledge of anything in the documents to the Court.
If the applicant is to be believed today in what he told the Court, clearly a number of persons have acted in a manner which is worthy of referral to various appropriate authorities. I ask, through Ms Johnson, that the Minister’s Department pursue any appropriate investigation in this regard.
In any event, in relation to the Application in a Case, the applicant has not provided a satisfactory explanation for his failure to attend Court on the previous occasion. His sole statement in support is that he did not attend previously because his migration agent did not tell him of the first Court date in this matter. As Ms Johnson submitted, no evidence whatsoever has been provided in support of that assertion. Further the evidence (by way of affidavit) that the applicant has purported to provide to the Court in explanation provides a completely different explanation. That is, that he was unwell.
What is left is that the applicant has not provided any satisfactory explanation. If his agent had told him not to attend, or did not tell him of the need to attend, it was open to the applicant to have put that in his affidavit. But, further, the applicant’s continued obfuscation in relation to who his migration agent was, and who it is that assisted in the creation of all these documents, does raise the concern as to how much weight can be placed on the applicant’s assertion before the Court in any event.
Even if the applicant’s submission to the Court was to be considered at face value, it plainly contradicts what he has put in his affidavit. His failure to mention that explanation in his affidavit and, further, his provision of a completely different explanation in his affidavit, results in a situation where he has not provided a satisfactory explanation for his failure to attend on the previous occasion.
I agree with Ms Johnson that that basis would be sufficient, in and of itself, to deny the application made by way of the Application in a Case. That is, that the orders made on the previous occasion be set aside and that the applicant’s original application be reinstated for hearing.
I also agree with Ms Johnson that, even if the applicant had provided some satisfactory explanation, the reinstatement of his original application would be an exercise in futility given the lack of merits in the grounds of the originating application to the Court.
At the hearing today I sought clarification from Ms Johnson on a matter arising from the Minister’s submissions. That is that the respondent’s written submissions, in relation to the grounds of the original application, asserted that s.422B of the Act applied and made reference to s.424AA. In light of that, I sought clarification from Ms Johnson as to the Minister’s position on whether s.424A(1) of the Act was engaged in relation to the issue of the “summons” (see below). It was the Minister’s position that it was not as the “information [was] said to be the delegate’s statement that it would be useful for him to provide a detention notice” and, in its terms, that did not contain a “… rejection, denial or undermining of the applicant’s claims”. Rather, the reference in the written submissions to s.424A was a “general reference” to the “general information” that was before the Tribunal which, in its terms, constituted a rejection of the applicant’s claims.
In this regard, in light of the clarification set out above and for the purposes of my judgment today, I adopt the submissions made by Ms Johnson in relation to the grounds of the original application. Those submissions are as follows.
The grounds appear in an attachment to the application and allege a breach of procedural fairness and apprehended bias on the part of the Tribunal. Those allegations appear to relate to the Tribunal’s findings at [65] (at CB 125) of its decision in relation to the applicant’s failure to provide the Tribunal with a copy of the detention notice or summons that he claimed were issued by the Chinese authorities.
The applicant claims that the delegate told him at the interview that he was not required to provide documentary evidence of the detention notice or summons. The Tribunal records in its decision record ([65] at CB 125) that the applicant did not produce those documents to it, that the applicant gave evidence that he had never seen the documents. Further, that when the Tribunal queried why he had not provided a copy, the applicant told the Tribunal that he had not done so as the delegate at his interview told him it was not required. The Tribunal’s decision record states that the Tribunal listened to a recording of the applicant’s interview with the delegate and could not find any relevant reference to any subject by the delegate which might have given the applicant the impression that the document was not required.
The Tribunal then referred to its discussion with the applicant at the hearing that, in circumstances where the delegate had not accepted that a detention notice or summons had been issued, it was difficult to understand why the applicant had not sought to produce it in an attempt to verify his claims. Further, the portion of the relevant sentence at [65] (at CB 125), states: “… the applicant indicated that the delegate had made such a finding”, suggesting that the applicant told the Tribunal that he was aware of the delegate’s finding. The Tribunal concluded by stating that while it drew no significant adverse inference from the lack of documentary evidence, the fact that the applicant had not seen the document, or a copy of the document, did give rise to concerns in the Tribunal’s mind that the document did not exist ([65] at CB 125).
The application to this Court appears to suggest that the applicant was denied procedural fairness because the Tribunal did not provide the applicant with a transcript of the recording of the delegate’s interview.
This was a matter to which s.422B of the Act applied and the requirements of common law procedural fairness did not apply. There is no section of the Act within Div.4 of Pt.7 that requires the Tribunal to provide the applicant with the recording or the transcript of the delegate’s interview. In any event, the Tribunal’s record of what occurred at the hearing before it, indicates that the Tribunal did put to the applicant that the delegate had not said what the applicant suggested he had said in relation to the detention notice or summons. This is relevantly set out in the Tribunal’s decision at [26] (at CB 116). The Tribunal recorded that the applicant did not have a copy of the summons. It records that the applicant asked the “immigration officer” and he said it was not needed ([26] at CB 116).
The Tribunal noted that it recalled that the delegate said it would be useful. The applicant again said it was not needed and the Tribunal put to the applicant that it was up to the applicant to put his case and suggested it was very surprising that he had not sought to produce the summons. The applicant did not put before the Tribunal, and has not sought to put before this Court, a record of the delegate’s interview which may support his assertions. In any event, the applicant was on notice, both by the delegate’s findings rejecting his claims in relation to the summons, and the Tribunal’s discussion with him at the Tribunal hearing, that his claims in relation to the summons may not be accepted.
The applicant did not seek to put that evidence before the Tribunal and, in those circumstances, the Tribunal’s findings at [65] (at CB 125) were open to it on the evidence before it. At [58] (at CB 122 to CB 123) of the Tribunal’s decision record the Tribunal recorded that while it had noted that the applicant could provide further information until the Tribunal made a decision, it did not propose to delay a decision for a specific period of time to allow him to do that.
The Tribunal noted that there were obvious problems with the applicant’s written statement and suggested that he may choose to tell the Tribunal what was true and what was not true, but that that was up to him ([58] at CB 124). The Tribunal records the applicant as saying that he actually did not hold much hope for getting a protection visa from the Australian Government. But, nevertheless, he thought would “give it a go” ([58] at CB 124).
In relation to the allegation of apprehended bias, the respondent submitted that there was nothing on the material before the Court, either in relation to the issue of the summons or more generally, that would support an allegation of apprehended bias. The Tribunal clearly alerted the applicant to the issues in the review at the Tribunal hearing. He was given the opportunity, both pursuant to s.425 and in response to information put to him under s.424AA of the Act, to address the Tribunal’s concerns.
Conclusion
The situation is that the applicant has not provided a satisfactory explanation as to his failure to attend at the earlier Court event. The Application in a Case is dismissed on that basis. Second, even if he had done so, given the futility of setting aside the orders in light of what was put forward as the grounds of the original application, it is also appropriate in all the circumstances that the Application in a Case made on 10 July 2012 is dismissed for that reason also.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 7 September 2012
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