SZSXB v Minister for Immigration

[2013] FCCA 1277

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSXB v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1277

Catchwords:
MIGRATION – Failure of applicant to attend hearing – appearance by a friend – alleged inability of the applicant to attend court due to illness.

Legislation:

Migration Act 1958 (Cth), s.426A

Applicant: SZSXB

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1192 of 2013

Judgment of: Judge Driver

Hearing date: 22 August 2013

Delivered at: Sydney

Delivered on: 22 August 2013

REPRESENTATION

Mr D Mak appeared on behalf of the Applicant

Solicitors for the Respondents:

Mr A Alderton

Sparke Helmore

INTERLOCUTORY ORDERS

1. The title of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. Subject to orders 4-8, the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. If order 2 takes effect, the applicant is to pay the costs and disbursements of and incidental to the application, fixed in the sum of $3,000.  In the event that order 2 does not take effect, costs are reserved.

4. Order 2 is stayed until 5.00pm on 23 August 2013.

5. If the applicant files and serves on the respondents by 23 August 2013 medical evidence of her inability to attend court on 22 August 2013 then order 2 will not take effect.

6. If order 5 is complied with, the following orders shall apply:

   (a)This show cause hearing will be adjourned until 10.15am on 4 September 2013.

   (b)The applicant has leave to file and serve on the respondents an amended application, giving complete particulars of all grounds of review relied upon and any affidavit evidence in support of such amended application by 30 August 2013.

7. In the event that the applicant files and serves on the respondents an amended application, the applicant may make oral application to rely upon the amended application on 4 September 2013.

8. Parties have liberty to apply for further orders or directions on three days’ notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG1192 of 2013

SZSXB

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 29 May 2013 seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 30 April 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution with an uncertain basis but apparently related to unfortunate business dealings. 

2. I have before me as evidence the court book filed on 24 June 2013.  The Tribunal’s decision discloses that after the applicant applied for protection she was invited to attend an interview before the Minister’s delegate on 7 December 2012.  She did not attend that interview and apparently made no contact with the Minister’s Department.  She subsequently hand-delivered to the Tribunal on 3 January 2013 an application to review the delegate’s decision.  The Tribunal records that on 26 March 2013 the Tribunal wrote to the applicant advising her that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. 

3. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 22 April 2013.  The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal would make a decision on her case without further notice.  No response was received, and the applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. 

4. In these circumstances, and pursuant to s.426A of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. In the result the Tribunal found that it had insufficient information to enable it to be satisfied that the applicant qualified for the grant of a protection visa.

5. The show cause application came before me for directions on 19 June 2013.  The applicant appeared in person with the assistance of a Mandarin interpreter.  I gave procedural directions for the conduct of the matter at that time.  Order 2 gave the applicant the opportunity to file and serve an amending application giving particulars of each ground of review by 10 July 2013, and order 3 gave the applicant the opportunity to file and serve any affidavit material containing additional evidence to be relied upon by the same date.  The applicant has not taken up the opportunity afforded by those orders.

6. I note that, possibly apprehending an argument that the applicant was not properly notified of the delegate’s decision, the Minister has filed an affidavit by Bromley Hornsby made on 12 July 2013 providing evidence intended to support the contention that there was no defect in the notification of that primary decision.

7. When the matter was called this afternoon there was no appearance by the applicant.  However, a person claiming to be her boyfriend, called Dickson Mak,  appeared and proffered an explanation for the applicant’s non-attendance.  That was both in the form of oral information provided by Mr Mak and a letter apparently written by the applicant.  Both the letter and Mr Mak assert that the applicant is this afternoon unwell due to period pain and is at the moment seeking medical attention.  Mr Mak offered an undertaking to provide medical evidence of the applicant’s inability to attend court.  Both the letter and Mr Mak also seek an adjournment to permit the applicant to obtain legal assistance to prepare, file and serve an amended application and possibly for representation.

8. The explanation for the applicant’s non-attendance is not persuasive in the absence of any medical evidence.  The request for an adjournment to obtain legal assistance in circumstances where the application has been before the Court since 29 May 2013 and the applicant knew that she had only until 10 July 2013 for an amended application is likewise not persuasive.

9. Were it not for the possibility that the applicant and Mr Mak may be telling the truth about the applicant’s asserted illness, I would have no hesitation in dismissing the application this afternoon on account of the applicant’s non-attendance.  I am still minded to do so, but with qualifications.

10. If, as asserted, the applicant is in the position to provide medical evidence that she is unfit to attend court this afternoon, then the Court would have to consider the reinstatement of her application, were it to be dismissed today.  It is also possible that some useful purpose might be served by giving the applicant the opportunity, even at this late stage, to provide a proposed amended application.  Mr Mak claims that the applicant would be in a position to provide such an amended application next week.

11. Having regard to all of these considerations, I have decided that the appropriate course is to dismiss the application today on account of the applicant’s non-attendance, but to suspend the operation of that order until 5.00pm tomorrow.  If, before that time, the applicant files and serves medical evidence of her inability to attend Court this afternoon, then the dismissal order will not take effect.

12. In the light of the orders I proposed, the Minister’s solicitor and Mr Mak made further submissions in relation to costs and other matters.  I will make costs orders reflective of the other orders I have decided to make.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 September 2013