SZSGD v Minister for Immigration & Anor (No.2)

[2013] FCCA 715

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSGD v MINISTER FOR IMMIGRATION & ANOR (No.2) [2013] FCCA 715

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Whether earlier orders made pursuant to Rule 13.03C of the Federal Circuit Court Rules dismissing application for non appearance should be set aside pursuant to Rule 16.05 of the Federal Circuit Court Rules – whether explanation for failure to appear is satisfactory – whether grounds of application have reasonable prospects of success – whether it is in the in the interest of justice to set aside dismissal of application – application refused.

Legislation:  

Federal Circuit Court Rules2001 (Cth) Reg.16.05

SZSGD v Minister for Immigration and Citizenship & Anor (No.1) [2013] FCCA 714
Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259;
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668;
Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231

Applicant: SZSGD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2724 of 2012

Judgment of: Judge Emmett

Hearing date: 26 June 2013

Date of Last Submission: 26 June 2013

Delivered at: Sydney

Delivered on: 26 June 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondent: Ms Nicola Johnson
(Sparke Helmore Lawyers)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2724 of 2012

SZSGD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is the applicant’s application in a case, filed today. The application is made pursuant to rule 16.05 of the Federal Circuit Court Rules2001 (Cth). It seeks to set aside orders made by me this morning dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 24 October 2012 for non-appearance by the applicant at today’s scheduled hearing.

2. I gave reasons this morning for dismissing the applicant’s substantive application for judicial review of the RRT’s decision for non appearance (See SZSGD v Minister for Immigration and Citizenship & Anor [2013] FCCA 714).

3. The applicant is unrepresented this afternoon, although has the assistance of an interpreter.  I explained to the applicant that the issues for the Court would be the reasonableness of his explanation for his failure to appear this morning at today’s scheduled hearing, and whether the application has sufficient prospects of success such that it would be in the interests of justice to set aside the court’s orders.

4. On 1 May 2013, the applicant filed a notice of change of address for service in Australia.  On 18 June 2013, the first respondent sent to the applicant by way of express post a letter enclosing the first respondent’s submissions and informing the applicant that the matter was listed for hearing on 26 June 2013 at 10.15am before me and providing the location and address of the court room.  The letter also informed the applicant that if he did not attend that the first respondent would seek that his matter be dismissed with costs. That letter was marked Exhibit 1A.

5. The applicant told the Court this afternoon that he did not receive that letter but was not able to provide any explanation as to why he did not receive the letter.  I note the letter was sent by express post to his correct address. It is the applicant’s responsibility to ensure that he knows the location of the court room.  In the circumstances, the applicant’s explanation for his failure to appear at today’s scheduled hearing is not satisfactory. 

6. Ion relation to the prospects of success of the applicant’s substantive application, the applicant confirmed that he relied on the grounds of his application filed on, 22 November 2012. 

7. Each of the grounds was interpreted for his assistance and he was invited to say whatever he wished in support of those grounds.  Those grounds are as follows:

   1. The member of RRT has made a decision mostly based on his opinion than facts.

   2. RRT member failed to identify the genuineness of my claims for protection.

   3. RRT interview conducted with the interpreter could not interpret what I have said correctly.

8. On 22 February 2013, the applicant appeared before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 12 April 2013.  The applicant was also directed to file and serve any evidence by way of affidavit by 12 April 2013 including any transcript of the RRT hearing.  The applicant was directed to file and serve written submissions in support of his application 14 days before the hearing.  At the directions hearing, the applicant elected to participate in the Court’s legal advice scheme and received free legal advice in accordance with that scheme on 5 April 2013.  The applicant was also provided with the contact details of other legal service providers and translating and interpreting services in a document headed in his own language should he wish to take his own advice.

9. On 11 June 2013, a document was filed by the applicant in the nature of submissions that was headed ‘Grounds of Review’ and was annexed to an affidavit of the applicant, affirmed 30 April 2013.  The applicant also filed two further affidavits in support of his application annexing material in the nature of country information that was not before the RRT.  Some of the documents post-dated the RRT hearing. 

10. The affidavits annexing country information were objected to by the solicitor for the first respondent on the grounds of relevance and rejected by me.  The affidavit annexing the applicant’s submissions was not objected to by the first respondent’s solicitor on the basis that it was in the nature of submissions.

11. In support of grounds 1 and 2, the applicant said more than once that his complaint was that the RRT had not accepted his claims and did not believe him and was prejudiced against him.  Plainly the complaint that the RRT did not accept his claims and did not believe him does not, by itself, demonstrate a jurisdictional error on the part of the RRT.  Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 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).

12. In relation to the applicant’s claim that the RRT was prejudiced against him, to the extent that this is intended to be a complaint of bias, a claim of bias is serious and requires evidence such as a transcript of the RRT hearing.  Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. 

13. The mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or by itself suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

14. As stated above, the applicant was given an opportunity to file evidence, including any transcript of the RRT hearing.  The applicant for whatever reason chose not to file any document in support of his allegation that the RRT was prejudiced against him.    

15. While I make no final determination given that this is an interlocutory application, a fair reading of the RRT’s decision record does not suggest any pre-judgment on the part of the RRT in the sense that the RRT was so committed to a conclusion already formed as to being capable of alteration or have been persuaded differently whatever evidence or argument may be presented.  A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. 

16. The applicant has not identified any evidence upon which a fair minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review.  In the circumstances to the extent that the applicant this afternoon complains that the RRT is prejudiced against him such a complaint has no reasonable prospects of success. 

17. In ground 3 of his application, the applicant appears to make a complaint about the quality of the interpretation. In order to amount to jurisdictional error, the deficiency of interpretation must be of such poor quality that an Applicant is effectively deprived of his right to appear (Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 at 245 at [38] per Kenny J).

18. The applicant provided no particulars or relevant submissions or evidence in support of that allegation.  Plainly, such an allegation requires evidence. Without particulars or evidence such an allegation has no or no reasonable prospects of success.

19. In the circumstances I am not satisfied that the applicant has identified any arguable claim for the relief sought and, in the circumstances, I am not persuaded that it would be in the interests of justice to set aside the orders made by the Court this morning. 

20. In the circumstances the applicant’s application that the Court set aside its orders made this morning should be refused with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  9 July 2013