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

[2015] FCCA 1690

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 1690

Catchwords:
MIGRATION – Application for reinstatement of show cause application – refusal.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424AA

SZUXS v Minister for Immigration & Anor [2015] FCCA 1267

Applicant: SZUXS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2277 of 2014

Judgment of: Judge Driver

Hearing date: 19 June 2015

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms N Blake of Clayton Utz

INTERLOCUTORY ORDERS

1. The Application in a Case filed on 29 May 2015 be dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2277 of 2014

SZUXS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 19 June 2015.  That application seeks the reinstatement of a show cause application which I dismissed on account of the applicant’s non-appearance on 14 May 2015[1].  The reinstatement application is supported by an affidavit by the applicant in which he explains that he was suffering from viral bronchitis and fever on the day of the hearing.  He states he was feeling dizziness because of the effect of medicine which he was taking for fever.  He apologises for his non-attendance.

   [1] See SZUXS v Minister for Immigration & Anor [2015] FCCA 1267

2. Annexed to the affidavit is a medical certificate from a Dr Anil Gupta of Strathfield.  Dr Gupta on 12 May 2015 certified that the applicant was suffering from viral bronchitis and was unable to attend work or studies between 11 May and 15 May.  Given that the certificate was issued two days before the scheduled hearing it is surprising that it was not supplied prior to that scheduled hearing.  I detailed in my earlier judgment the circumstances of the Court’s inability to contact the applicant at the time of the hearing.  Nevertheless, I am willing to accept on the basis of the affidavit evidence and the medical certificate that the applicant has advanced a satisfactory explanation for his non-attendance on 14 May this year.

3. The applicant contacted the Court prior to today’s hearing to advise that he would be unable to attend the hearing of his Application in a Case.  His explanation is that he is suffering from a degenerative spine condition and pain in his back hence he is unable to travel.  He provided a further medical certificate from Dr Anil Gupta.  The additional certificate is dated 15 June 2015.  Dr Gupta certifies that the applicant is suffering from a degenerative spine condition and unable to attend work or studies between 15 June 2015 and 15 July 2015.

4. In view of that information I gave leave for the applicant to attend today’s hearing by telephone.  While he took up that opportunity it was not willing.  The applicant sought an adjournment.  He said that the adjournment would provide him with the opportunity to attend court in person to present his case.  I refused that request on the basis that the applicant had had already 10 months to prepare his case and I did not see that anything useful would be served by further delay.  I invited the applicant to make submissions on the question of whether he is able to establish an arguable case of jurisdictional error by the Refugee Review Tribunal (Tribunal).

5. I was concerned to establish whether the application before the Court points to any serious question to be tried.  The application as filed on 14 August 2014 asserts first that the Tribunal did not give the applicant a chance to put his side properly.  No particulars are provided and, as is pointed out in the Minister’s submissions, the simple allegation does not go anywhere in the absence of particulars.  The applicant asserted in his oral submissions that he did not receive a fair hearing.  He asserts that he was unable to put what he wanted to put and was just asked a lot of questions.

6. The only record of what occurred at the Tribunal hearing is in the record of the Tribunal’s decision in the court book filed on 8 October 2014.  There is nothing in the available material to support the applicant’s assertion.  In orders I made on 17 September 2014 I had given the applicant the opportunity to file and serve an amended application and further evidence, including a transcript of the Tribunal hearing, but he did not take up that opportunity.

7. Secondly, the applicant asserts that the proof he submitted to the Tribunal should have been accepted but was not considered genuine by the Tribunal.  The Minister’s submissions deal with that contention.  I agree with and adopt those submissions.

8. The Minister assumes that by “proof”, the applicant is referring to the documentary evidence he provided in support of his claims. This Court cannot reconsider the merits of the evidence provided by the applicant.

9. I accept that it was open to the Tribunal to have concerns regarding the applicant's documentary evidence.  Those concerns were informed by the Tribunal's credibility findings, by inconsistencies between the documents and other evidence provided by the applicant, as well as by independent country information regarding the prevalence of document fraud in India[2].

   [2] Court Book (CB) 137-138 [24]-[25], 139 [28], 140 [30]-[31]

10. For example, the Tribunal noted that the applicant had provided a letter, allegedly from his political party, that asserted that he had been a “Senior Member at District Level” from 2005.  This was contradicted by the applicant's written statement, which indicated that he began working for the Party from July 2009, and by his evidence at hearing, in which he claimed to have been involved from 2007 or 2008 and to have held the role of “District President”.  The applicant provided no satisfactory explanation for these inconsistencies.

11. The Tribunal also noted that one of the documents produced at hearing was said to evidence defamation proceedings taken by the applicant against a person called “Bamba”. The Tribunal noted that although the applicant had claimed that Bamba had lodged a First Information Report against him, he had not previously claimed to have commenced proceedings against Bamba.  The Tribunal considered that the lateness of this claim undermined the credibility of the document.

12. The applicant asserted in his oral submissions today that people in India cannot fabricate documents and purportedly official documents are genuine.  I proceed on the basis that he had the opportunity to put that proposition to the Tribunal.  He contends that he was told he would only have one and a half hours or possibly less to present his case to the Tribunal, however, the Tribunal’s hearing record[3] indicates that the hearing went for approximately three hours.

    [3] CB 91

13. The applicant contends that he wanted to submit further material to the Tribunal but was denied that opportunity. There is nothing to support his propositions either that the hearing was truncated or that he was denied the opportunity to present his case. I note that at [28] of the Tribunal’s reasons the Tribunal records that after putting adverse information to the applicant pursuant to s.424AA of the Migration Act 1958 (Cth) the applicant responded immediately and said that he did not need more time. There is nothing in the available material to suggest that the applicant sought more time to produce information to the Tribunal at or after the hearing.

14. I conclude that no useful purpose would be served by the reinstatement of the show cause application.  I will order that the Application in a Case filed on 29 May 2015 be dismissed.

15. In consequence of the dismissal of the Application in a Case the Minister seeks an order for costs fixed in the amount of $1,300.  The applicant sought an explanation of the amount sought as compared with the amount awarded on 14 May 2015 but did not otherwise wish to be heard on costs.

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,300.

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

Associate: 

Date:  23 June 2015