SZRPN v Minister for Immigration and Anor
[2013] FMCA 199
•18 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRPN v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 199 |
| MIGRATION – Refugee Review Tribunal PRACTICE & PROCEDURE – Application to have the orders set aside pursuant to rule 16.05 of the Federal Magistrates Court Rules 2009 (Cth) – unsatisfactory explanation – applicant’s application for judicial review of the Refugee Review Tribunal’s decision has no reasonable prospects of success. |
| Federal Magistrates Court Rules 2009 (Cth) r. 16.05 |
| Bringinshaw v Bringinshaw (1938) 70 CLR 336 |
| Applicant: | SZRPN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1432 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 March 2013 |
| Date of Last Submission: | 18 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2013 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondent: | Mr Barlow, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1432 of 2012
| SZRPN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
This is the applicant’s application that orders made by this Court on 27 February 2013 dismissing this proceeding, be set aside.
The orders sought by the applicant do not seek any relevant relief. They are as follows:
1. Due to the lack of understanding of English languages I didn’t understand the contents of the invitations for hearing on 27 February 2013 at 10:15am in the Federal Magistrates Court, 80 William street Sydney and mistakenly attended the Court located at 88 Goulburn street in Sydney. Please reinstate my hearing.
However, the applicant confirmed to the Court that he was indeed seeking to have the order made by the court on 27 February 2013 dismissing his case set aside.
In support, the applicant filed an affidavit on 4 March 2013. That affidavit does no more than state that the contents of his application are true to the best of his information and understanding.
The applicant was unrepresented before this court although had the assistance of an interpreter.
I explained to the applicant the two issues that would be of particular relevance to the Court. First, whether the explanation for his failure to appear is reasonable in all the circumstances; and, secondly, whether the application for judicial review of a decision of the Refugee Review Tribunal, dated 22 May 2012, has any reasonable prospects of success.
I informed the applicant that there was no evidence before this Court of any explanation for his failure to attend the hearing on 27 February 2013. I invited the applicant to seek leave to give that evidence orally, which the applicant then did.
The substance of the applicant’s evidence, which was confirmed in cross-examination, was that he had received information from the first respondent and from a lawyer who had originally represented him (and who had filed a notice of withdrawal on 19 February 2013) of the time, date and location of the courtroom that he was required to attend on 27 February 201. However, he did not look at the address of the location of the courtroom.
Directions were made by me on 15 August 2012 for the filing of an amended application, evidence and submissions in support of his application for judicial review. The applicant has filed no documents, either in accordance with those directions or otherwise.
In the circumstances, the applicant’s explanation for his failure to appear at the scheduled hearing because he chose not look at the information which provided him with the relevant details of the time, date and location of his hearing, is unreasonable. It is an entirely unsatisfactory explanation. It is the applicant’s responsibility to ensure that he is aware of the contents of correspondence relating to his application.
In relation to whether the applicant’s application for judicial review of the Tribunal’s decision has any reasonable prospects of success, I note that the grounds of the application, filed 29 June 2012, are as follows:
1. The Tribunal has misapplied the law.
Particulars
a. The Tribunal failed to apply the correct standards of proof for the purposes of assessing the applicant’s claims, namely the test enunciated by the High Court in Bringinshaw v Bringinshaw (1938) 70 CLR 336.
b. The Tribunal has failed to give meaningful consideration to the applicant’s specific claims against the Complementary Protection provision contained in Section 36(2)(aa) of the Migration Act.
Each of the grounds was translated for the benefit of the applicant and he was invited to say whatever he wished in support of those grounds.
In relation to the first ground, the applicant said he did not understand and had nothing to say. The ground is unsupported by particulars, evidence or oral or written submissions. On its face it does not disclose an error capable of review by this Court.
I accept the submissions of the solicitor of the first respondent that the complaint in ground 1 is misconceived. The authorities have made clear that it is for an applicant to satisfy the decision-maker that he meets the criteria for the grant of the visa which he seeks. The principles enunciated in Bringinshaw v Bringinshaw (1938) 70 CLR 336 (“Briginshaw”) have no relevance or application to that consideration. In those circumstances, ground 1 of the applicant’s application has no prospects of success.
In support of ground 2 the applicant asserted that the Tribunal failed to give meaningful consideration to his specific claims in relation to the complementary protection provisions. The solicitor for the first respondent, Mr Barlow, tendered the bundle of relevant documents identified as the Court Book filed on 22 August 2012. Those documents include a copy of the Tribunal’s decision record.
On the face of the Tribunal’s decision record, there is nothing to suggest that the applicant raised any issue in relation to the Tribunal’s obligation to consider complementary protection and made no submissions in support of that obligation by the Tribunal.
There is no evidence before this Court to suggest that the record of the Tribunal is in any way inaccurate or incorrect insofar as it refers to various exchanges that he had with the applicant during the hearing and its summary of submissions made by the applicant at the hearing. None of those submissions refer to the complementary protection issue. Nevertheless, the Tribunal is obliged to give consideration to complementary protection.
It would appear from the Tribunal’s decision record, that it clearly did so. The Tribunal rejected the applicant’s evidence as supporting his claim for a well-founded fear of persecution from Maoists in Nepal on the basis of his adverse credibility findings.
It would appear that the Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal.
Having rejected the applicant’s claims and evidence in support of his protection visa application, it would appear to have been open to the Tribunal not to be satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal there is a real risk that he would suffer significant harm as defined in the Act. In the circumstances, ground 2 would appear to have no prospects of success.
A fair reading of the Tribunal’s decision record does not appear to disclose any jurisdictional error on the part of the Tribunal in the conduct of its review, including its decision record.
For those reasons I am satisfied that the applicant’s application for judicial review of the Tribunal’s decision record has no reasonable prospects of demonstrating any jurisdictional error on the part of the Tribunal.
Further, as I have already said, the applicant’s explanation for his failure to appear at the scheduled hearing is entirely unsatisfactory.
For those reasons, the applicant’s Application in a Case, filed 4 March 2013, seeking to set aside orders made by the Court on 27 February 3013, should be dismissed with costs.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Emmett FM.
Date: 18 March 2013
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