SZVJZ v Minister for Immigration and Anor (No.1)

[2016] FCCA 390

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVJZ v MINISTER FOR IMMIGRATION & ANOR (No.1) [2016] FCCA 390

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether the applicant has an adequate reason for not proceeding with the show cause hearing – whether there is any utility in granting the adjournment – application for an adjournment dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: SZVJZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3019 of 2014

Judgment of: Judge Manousaridis

Hearing date: 18 February 2016

Delivered at: Sydney

Delivered on: 18 February 2016

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondent: Ms S Sangha of
Mills Oakley Lawyers

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3019 of 2014

SZVJZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 26 November 2014, this matter came before me on a first court date.  On that day, directions were made in accordance with draft short minutes of order signed by the applicant and by a legal representative of the first respondent (Minister). Order 9 provided that the matter be listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) at 10.15 am on 18 February 2016, before me.

2. At 10.15 am this morning, when it was apparent that the applicant was not in Court or near the Court, I instructed my associate to contact the applicant on the telephone number the applicant had provided to the Court.  After several attempts, contact was made and the matter was called.  When it was called, the applicant appeared by telephone. 

3. There was an interpreter in Court and, through that interpreter, the applicant informed the Court that he was in Dundas and that he was unaware that the matter was before the Court today.  He claimed that he had received no notification of the court date.  I directed that the matter, that is to say, the show cause hearing be listed for hearing before me at 12.15 pm, and I informed the applicant that if he were not to attend Court at that time, I would dismiss his application and order that he pay the Minister’s costs. 

4. At 12.15 pm, the applicant did appear.  After I explained to the applicant the procedure, I took the applicant through his claim and invited the applicant to make submissions in support of his application.  The solicitor for the Minister made submissions in reply.  However, in the course of the applicant’s submissions in reply to those of the Minister’s solicitor’s submissions, the applicant requested further time.  In other words, the applicant requested an adjournment. 

5. When faced with applications for an adjournment, the Court is called on to exercise a discretion, and although the Court is not bound by the matters it may take into account when it exercises its discretion, there are generally two matters which are of importance. The first is the reasons for which an adjournment is sought, more particularly, why the person seeking the adjournment is not in a position, or claims not to be in a position, to participate in the hearing on the appointed day.  The second factor, and usually, the determining factor, is whether there would be any utility in the court granting the adjournment which is sought.  I turn to those two matters now. 

6. The applicant, from the bar table, said he was not aware of the hearing date having been appointed.  When I made the applicant aware of the fact that he had signed a document which stated that the matter had been set down for hearing today, the applicant said it was a long time ago. 

7. The solicitor for the Minister tendered two letters, one dated 6 November 2014 and the other dated 10 February 2016.  The first letter gave details of agencies the applicant might wish to contact for assistance.  The letter dated 10 February 2016 noted that the matter was listed for a show cause hearing before me on 18 February 2016 at 10.15 am.  On their face, the letters are both addressed to the applicant at a post box address which is the same as the post box address specified by the applicant in his application.  From the bar table, the applicant confirmed that the post box address is that which belongs to his friend.  The applicant, however, says he did not receive those two letters. 

8. Since service of the letters has been put in issue, I cannot infer merely from the production of file copies of the letters that they were, in fact, sent.  If it was necessary to make that finding, I would have given the Minister an opportunity to properly prove the posting of those letters.

9. In my opinion, however, whether or not the applicant received those letters is not important, and that is because the applicant was made aware that the matter had been set down for hearing at 10.15 am today and it was wholly within the applicant’s responsibility to absorb that fact and to do what he had to do in order to prepare himself for that hearing.  Therefore, I am not satisfied that the applicant has given any adequate reason for his not being in a position to deal with his application today, which would, therefore, give some justification for his seeking an adjournment. 

10. I next turn then to the reasons for which the applicant says he wants the adjournment.  When I asked him what he proposed to do if an adjournment were granted, he said that he would collect documents from China.  I asked then what documents he had in mind.  The applicant said it was documents to prove the genuineness of his claim and, in particular, documents relating to the demolition of his parents’ house.  The applicant gave no other reason about what he would do if an adjournment were granted. 

11. There are two difficulties with that.  Even if the applicant had stated on oath that would be his intention, I would have difficulty accepting it.  Directions were made on 26 November 2014 which provided for the applicant to file and serve affidavits containing additional evidence.  The applicant has made no attempt to provide further evidence as permitted by the directions I made on 26 November 2014.  Having not obtained evidence shortly after directions permitting him to do so were made, I am not satisfied that he would do so now if an adjournment were granted. 

12. The second difficulty is the limited nature of the evidence he says he wishes to obtain.  As was submitted by Ms Sangha, the Minister’s solicitor, the Tribunal did accept that the applicant’s family home was demolished as claimed by the applicant.  The applicant’s, therefore, obtaining evidence to prove that demolition could not possibly have any bearing on his application for judicial review on any ground, let alone the grounds on which he currently relies on, as set out in his application.  There is an additional difficulty with the evidence that the applicant says he would seek to obtain.  It appears that that evidence could only go to the existence or non-existence of a matter which it was wholly within the jurisdiction of the Refugee Review Tribunal to determine;  that is to say, whether the applicant’s parents’ home was demolished as the applicant claimed. That manifests a misunderstanding by the applicant of the purpose and nature of the jurisdiction of this Court when entertaining applications for judicial review of decisions made by the Refugee Review Tribunal. 

13. This Court does not sit as an appeal court from decisions made by the Refugee Review Tribunal.  The Court, and I am saying this for the benefit of the applicant, does not, itself, consider the claims for protection the applicant or any applicant may make and determine for itself whether the applicant is entitled to the grant of a protection visa.  The only role of this Court in an application for judicial review is to determine whether the Tribunal, in affirming the decision of a delegate, has made a jurisdictional error.  That is a technical term and would be unfamiliar to the applicant, but a more easily understood term would be “according to law”.  The role of this Court is to determine whether the Refugee Review Tribunal reached its decision according to law, having regard to claims that are made. 

14. For those reasons, the application for an adjournment is refused. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  25 February 2016