SZUHZ v Minister for Immigration & Border Protection & Anor (No.2)

[2014] FCCA 1499

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHZ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR (No.2) [2014] FCCA 1499

Catchwords:

MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Applicant failed to attend scheduled hearing – whether orders made dismissing proceeding should be set aside – whether explanation for failure to appear satisfactory – whether prospects of success are sufficient such that it is necessary in the interests of justice to reinstate proceeding – application refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.16.05, 44.12
Migration Act 1958 (Cth) ss.425, 425A, 426A

Applicant: SZUHZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1241 of 2014

Judgment of: Judge Emmett

Hearing date: 3 July 2014

Date of Last Submission: 3 July 2014

Delivered at: Sydney

Delivered on: 3 July 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Respondent: Mr Lewis d’Avigdor
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1241 of 2014

SZUHZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed on 6 June 2014, I understand that the applicant seeks orders that the court vary the orders that the Court made on 2 June 2014, dismissing the proceeding, commenced by way of Application filed on 9 May 2014, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to attend the first court date hearing. Pursuant to r.16.05 of the rules, the Court has power to set aside that order if the order was made in the absence of a party.

2. The applicant is unrepresented before the court this morning, although has the assistance of an interpreter. I explained to the applicant that the matters that would be of particular significance in considering his Application in a Case are the explanation for his failure to appear and the prospects of success of his application for judicial review of a decision of the Refugee Review Tribunal dated 23 April 2014 (“the RRT”).

3. The applicant filed an affidavit on 6 June 2014 in support of his Application in a Case, in which he stated that he did not receive notification of his hearing in court on 2 June 2014 and that he believed his mail is being tampered with.

4. On 21 May 2014, the Court wrote to the applicant at the address identified by him on his substantive application filed on 9 May 2014 informing him that the first court date listed for directions on 3 June was relisted to 2 June at 9:00am. I asked the applicant how he came to file his Application in a Case having regard to his assertion that he has not received any paperwork, and he said that he did so just to see if any letters or paperwork had been sent to him.

5. There is no evidence other than the applicant’s assertion in his affidavit that he believes his mail is being tampered with. In the circumstances, I am not satisfied that the explanation offered by the applicant is adequate.

6. In relation to the prospects of success of the substantive application and whether the interests of justice would demand that, despite the inadequacy of the applicant’s explanation, the matter should be reinstated, the grounds of the substantive application are as follows:

   “1. The delegate to the Minister (DIBP) failed to understand that I am a genuine applicant for stay as a student visa holder.

   2. The delegate to the Minister failed to understand that I have the adequate arrangements in Australia for health insurance during the periods of my intended stay in Australia.

   3. The delegate to the Minister failed to understand that I have the financial capacity to continue by study in Australia.”

7. In support of those grounds, the applicant said that he did not attend the tribunal hearing because he was not aware of the date, and he had nothing further to say.

8. The first respondent read the affidavit of Mikhail Glavic, affirmed 27 June 2014, and filed on that date. Mr Glavic’s affidavit annexed a copy of the applicant’s application to the RRT which identified the applicant’s address for correspondence. On 24 March 2014, the RRT wrote to the applicant’s migration agent at the address identified by the applicant in his application for review enclosing an invitation to appear before the tribunal. The invitation gave the date, time, and location of the hearing, and informed the applicant that if he did not seek an adjournment, he should assume that the hearing will go ahead, and that if he did not attend the hearing, the tribunal may make a decision without taking any further action to allow or enable the applicant to appear before him.

9. Mr Glavic’s affidavit also annexed a copy of the postal dispatch register indicating that the RRT’s letter, dated 25 March 2014, was sent on 25 March 2014to the applicant at the address identified.

10. In the circumstances, I am satisfied that the RRT complied with ss.425 and 425A of the Migration Act 1958 (Cth) (“the Act”) in inviting the applicant to attend the hearing before it.

11. The RRT’s decision record refers to the failure of the applicant to appear before it and notes that neither the applicant nor his migration agent contacted the RRT to explain his failure. In the circumstances, the RRT proceeded to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to section 426A of the Act.

12. The RRT then considered the material before it and found the applicant’s written claims to be very brief and lack detail. The RRT concluded that the information given in his application was not sufficiently detailed to enable the RRT to be satisfied that the applicant faces a real chance of persecution for a Convention reason in Lebanon either now or in the reasonably foreseeable future or that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon there is a real risk that he would suffer significant harm. Accordingly, the RRT affirmed the decision under review.

13. It is for an applicant to satisfy the decision-maker that he meets the criteria for his visa. The Act makes clear that in the event that the decision-maker is not so satisfied, it must refuse the visa application.

14. There is nothing on the face of the RRT’s decision record, or anything raised by the applicant either in his written grounds or in oral submissions this morning, to suggest that the RRT’s exercise of its discretion pursuant to s.426A of the Act miscarried or that the RRT’s decision is otherwise affected by jurisdictional error.

15. In the circumstances, I am not satisfied that the applicant’s application, filed on 9 May 2014, has sufficient prospects of success such that it would be in the interests of justice to reinstate the applicant’s application for judicial review.

16. Accordingly, the applicant’s Application in a Case, filed on 6 June 2014, should be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 11 July 2014