SZSPR v Minister for Immigration
[2013] FCCA 941
•5 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSPR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 941 |
| Catchwords: MIGRATION – Review of the decision of the Refugee Review Tribunal – no appearance by the applicant – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C |
| SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 |
| Applicant: | SZSPR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 366 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 5 July 2013 |
| Date of Last Submission: | 5 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2013 |
REPRESENTATION
| The applicant: | No appearance |
| Appearing for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 25 February 2013 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,326.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 366 of 2013
| SZSPR |
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, made on 25 February 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 29 January 2013, to affirm the decision of the respondent Minister’s delegate to refuse a protection visa to the applicant.
I also have before me today a bundle of relevant documents (Court Book – “CB”), filed by the Minister’s solicitors.
The applicant is a citizen of the People’s Republic of China (“China”) (CB 11). He arrived in Australia on 31 October 2011 (CB 13) and applied for a protection visa on 17 January 2012 (CB 1 to CB 25).
When the matter first came before the Court on 27 March 2013, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. A number of orders were made by the Court, including orders giving the applicant the opportunity to file and serve an amended application, and any affidavit containing evidence in support. I note that nothing has been filed by the applicant.
The applicant was also referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. It is not clear whether the applicant obtained that legal advice or not. In any event, I rely on Federal Court authority, SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702, for the proposition that there is no legal entitlement to any such legal advice.
The grounds of his application are as follows:
“(1) I refused the Chinese authorities compensation for my company which led to me being harmed and threatened.
(2) The Refugee review Tribunal member failed considering all my claim and evidence.
(3) The Refugee Review Tribunal made jurisdictional error while make his decision.”
The applicant was on notice that, if his application remained in that same bare, unparticularised form, the Minister may seek dismissal of his application today on the next occasion. The matter was set down for further mention today (5 July 2013) at 10.15am.
Due to the unavailability of a Courtroom for the Court event, the time of the mention had been changed from 10.15am to 2.15pm. That was communicated to the parties by letter sent from my chambers.
When the matter was called today the applicant did not appear. Ms N Johnson appeared for the respondent Minister. The Minister sought that, in light of the applicant’s non appearance, the matter be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
I am satisfied that the change to the time of the mention (2.15pm, instead of 10.15am) is not of any great moment. That is given what was sent to the Court. That is, a medical certificate (“the Certificate”), from Associated Medical Centre in Campsie, New South Wales, signed by a Dr Lin to and dated 3 July 2013. The Certificate was taken into evidence and marked Respondent’s Exhibit 1 (“RE1”). The Certificate provides as follows:
“This is to certify that I have examined
[the applicant]
who is suffering from
MEDICAL CONDITION
and, in my opinion, he will be unfit for duty from 04/7/2013 to 05/07/2013 inclusive. “
There is no request by the applicant for an adjournment of the matter today. However, even if there had been an adjournment application accompanying the Certificate, it is not appropriate, for a number of reasons, that the matter be adjourned today.
First, the Certificate is not a satisfactory explanation for the applicant’s inability to attend Court today. Nor is it a satisfactory explanation for his failure to attend Court today. There is nothing on the Certificate to indicate that the doctor issuing the Certificate directed it to the applicant’s fitness, or otherwise, for attending Court.
Second, what is meant by the word “duty” in the Certificate is unexplained. While the Court should not draw any assumptions as to what it may otherwise mean, what is clear is that it does not relate to the applicant’s capacity to attend to his matter today.
Further, I note that the term “medical condition” provides no basis for the Court to be satisfied that the applicant is suffering from some incapacity relevant to the proceedings today. In the circumstances and in the absence of a level of detail in the Certificate from the medical practitioner, there is no basis upon which the Court can make any assessment.
Third, nor has the applicant sought to participate today by any other means (for example, by telephone).
Therefore, the Certificate is not a satisfactory explanation for the applicant’s failure to attend Court today (NALM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 17 and NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559). Further, it is also an unsatisfactory basis upon which to seek, and for the Court to subsequently grant, any adjournment to the applicant.
I also note that the bare grounds of the application are such that they weigh in favour of the matter proceeding to some finality today.
The applicant has had more than a reasonable period of time to seek legal advice. Indeed, it was open to him to seek legal advice from any legal practitioner, or any legal organisation, in order to give some substance, or particularity, to his claims. It is not clear whether or not he has done so.
Ground one of the application is a bare assertion of fact. It does not assert jurisdictional error on the part of the Tribunal.
The second ground (the alleged failure by the Tribunal to consider the applicant’s claims) cannot be viewed as anything other than a complaint that the Tribunal did not accept the applicant’s claims. I say this, in the absence of any further particularity, having regard to the Tribunal’s decision record and the material in the Court Book.
The word “considering” in ground two can only be seen as an assertion that the Tribunal did not accept the applicant’s claims. I cannot see, on what is before me, any legal error in light of such authorities as Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1.
The third ground is just a bare assertion of jurisdictional error, which is meaningless without any particularity. In light of these matters, I am comforted that it is appropriate to proceed today.
Importantly, the applicant was on notice of the Court event today. He was on notice of the time, the date and the place. The fact that he has provided the Certificate (assuming that the Certificate was sent by him) supports the proposition that he knew of the Court event today.
In light of the applicant’s absence today, and the unsatisfactory explanation for his failure to attend, it is appropriate that I make the order that the Minister seeks. I will dismiss the applicant pursuant to r.13.03C(1)(c) of the Rules.
It is also appropriate that a costs order be made in this matter in the usual way. I cannot see anything to argue against the making of the order. As to the amount, I am satisfied that, in the circumstances, it is a reasonable amount. I will make the order in the amount sought by the Minister.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 25 July 2013
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