SZSLP v Minister for Immigration

[2013] FCCA 192

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLP v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 192

Catchwords:
MIGRATION – Application for reinstatement of a judicial review application following its dismissal on account of the applicant’s non appearance.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.477

Applicant: SZSLP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3128 of 2012

Judgment of: Judge Driver

Hearing date: 3 May 2013

Delivered at: Sydney

Delivered on: 3 May 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F Taah
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The Application in a Case filed on 18 March 2013 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $1,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3128 of 2012

SZSLP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an Application in a Case filed on 18 March 2013.  That application was filed by the applicant in the principal proceedings.  The principal proceedings were commenced on 28 December 2012.  By that application the applicant sought judicial review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 20 September 2012.  The Tribunal had affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The initial return date provided for the originating process was 7 March 2013 at 9.30am.  By letter dated 3 January 2013 sent to the applicant at his nominated address for service, the Court advised of a change of date for the first court date.  The letter advised the applicant that the first court date would be at 9.30am on 6 March 2013.  The solicitor for the Minister also wrote twice to the applicant at his nominated address for service.  Those letters were dated 10 January 2013 and 22 February 2013.  Both letters informed the applicant of the revised court date of 9.30am on 6 March 2013. 

3. The applicant did not attend court on 6 March 2013. In consequence of that non-attendance I dismissed his application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). I also made a costs order and ordered that the Minister inform the applicant of the orders made by the court by sending a sealed copy by ordinary prepaid post to the applicant’s last-known address for service. The Minister’s solicitors complied with that order by letter dated 16 April 2013. That letter was also sent to the applicant at his nominated address for service.

4. In his Application in a Case filed on 18 March 2013 the applicant uses the same address for service.  The application is supported by an affidavit made by the applicant on 14 March 2013.  In that affidavit the applicant gives as his address his address for service.  The applicant deposes that on 14 February 2013 he suffered a serious burn injury while cleaning and trimming carpet in his home.  He deposes that the pain caused by his injuries made him forget the court hearing date until the time had passed.  On that basis he seeks the reinstatement of his principal application.

5. Annexed to the affidavit are photographs of two hands and a foot, showing burn injuries.  Also attached to the affidavit are invoices from New South Wales Western Health District, and two medical practitioners.  Those invoices provide evidence that the applicant received medical attention on or about 19 February 2013 and 21 February 2013.  All of the invoices identify the applicant as residing at an address different to the address for service.

6. The applicant was cross-examined on his affidavit.  He produced his drivers licence, which identifies his address as the address on the medical invoices.  He gave evidence that the drivers licence was renewed for a period of 12 months on or about 27 March 2013.  He gave evidence that his previous drivers licence gave the same address.  The applicant gave evidence that he currently lives at the address on his drivers licence, and that he has previously lived at that address.  He claimed that, for a period of some months from late 2012 until approximately two weeks ago, he lived at his address for service.  I seriously doubt that assertion.  He was vague and evasive about the period he lived at the address for service.  I think it likely that he has always resided at the address on his drivers licence.  He denied receipt of the correspondence from the Minister’s solicitors advising him of the court fixture.  He admitted receipt of some correspondence advising him of the dismissal of his application.  He did not know who that letter was from.  He was unable to identify the letter from the Minister’s solicitors advising him of the outcome as the letter he received.  He also had no recollection of receiving the letter from the Court advising of the change of the date of the first return date of the principal application. 

7. I am willing to accept that the applicant did not receive correspondence sent to the address for service.  I think it likely that that was because he has not lived there.  It may be that he nominated that address as his address for service because someone else lives there who may have been assisting him with his case.  The applicant conceded in response to a question from me that he did not know when the first return date for his application was.  He could not have forgotten something that he did not know.  It follows, in my view, that the applicant’s burn injury is not a sufficient explanation of the applicant’s non-attendance at court on 6 March 2013.  I accept that the applicant suffered that burn injury although I do not necessarily accept his explanation of the cause of it.  I do not accept that injury as a sufficient explanation for the applicant’s non-attendance.

8. Even if I had been persuaded that there was a good explanation for the applicant’s non-attendance on 6 March 2013 I would nevertheless reject the application for reinstatement. The principal application was filed well outside the 35 day limitation period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act). It follows that the applicant would have required an extension of time for that application in the exercise of the Court’s discretion under s.477(2).

9. The applicant sought to provide an explanation for his initial delay in coming to Court in the principal application.  That explanation was that someone who he described as his agent demanded $1,400 for him to prepare the court application.  He was unwilling to pay that amount.  His unwillingness to pay an amount demanded of someone to assist him with documentation is not, in my view, a sufficient explanation for the delay and does not provide justification for an extension of time.

10. Further, the grounds in the principal application do not disclose any arguable case of jurisdictional error.  The first ground is a simple disagreement with a factual finding by the Tribunal.  The second ground is an unparticularised allegation of bias which is not supported by any evidence.  The third ground is an assertion of jurisdictional error which is meaningless in the absence of particulars. 

11. The applicant had sought protection on the basis of his asserted practice of Falun Gong.  The Tribunal disbelieved that claim.  The Tribunal found that the applicant is not a genuine Falun Gong practitioner.  It is, in my view, clear that that conclusion was open to the Tribunal on the basis of the material before it.  There is nothing in the court book filed on 21 February 2013 which leads me to think that any jurisdictional error on the part of the Tribunal should be apprehended. 

12. For all of the above reasons I have concluded that the Application in a Case filed on 18 March 2013 should be dismissed.  I so order.

13. In consequence of the dismissal of the application in a case the Minister seeks an order for costs fixed in the amount of $1,000.  The applicant said that he would continue to appeal.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $1,000

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  8 May 2013