VMAO v Minister for Immigration

[2004] FMCA 197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VMAO v MINISTER FOR IMMIGRATION [2004] FMCA 197

MIGRATION – Application to set aside dismissal for non-appearance – whether reason given for non-appearance – whether any prospects of success shown.

Applicant S157 of 2002 v Commonwealth (2003) 195 ALR 24
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134 of 2002 (2003) 195 ALR 1

Applicant: VMAO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 352 of 2003

Delivered on: 29 March 2004

Delivered at: Melbourne

Hearing Date: 29 March 2004

Judgment of: Phipps FM

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent: Mr E. Heerey

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the Application filed 26 November 2003 to set aside the Orders of Federal Magistrate Scarlett made 22 September 2003 is dismissed.

2. That the Applicant pay the Respondent’s costs fixed at $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 352 of 2003

VMAO

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this case filed an application in relation to a decision of the Refugee Review Tribunal dated 10 December 2002 and handed down on 10 January 2003.  The application was originally filed in the Federal Court of Australia and was subsequently transferred to this court, the Federal Magistrates Court of Australia. 

2. The decision of the Refugee Review Tribunal was to affirm the decision refusing the applicant a protection visa.  The application was listed in the Federal Magistrates Court before Scarlett FM on 22 September 2003.  The application was dismissed due to the non-appearance of the applicant on that day. 

3. The application before the court today, is an application to set aside the decision of Scarlett FM.  Subsequently directions were given for the applicant to file an affidavit in support of that application.  The applicant did not file an affidavit but has given oral evidence today.  In opposition to the application to set aside, an affidavit has been filed by Jennifer Greaves, the solicitor for the respondent, sworn on 28 January 2004.  Ms Greaves’ affidavit says that on 19 August 2003 the applicant's former solicitors filed a Notice of Ceasing to Act.  On

   
   

   26 August 2003 Ms Greaves wrote to the applicant at his residential address.  That letter stated that the application was listed for hearing on 22 September 2003 at 10.15am.  It stated that if the applicant failed to appear on that date, the solicitors on behalf of the minister would apply to the court for the application to be dismissed with an order that the applicant pay the minister's costs.  The letter then invited a telephone call to Ms Greaves if the applicant had any questions.

4. Ms Greaves says that on 5 September 2003 the applicant telephoned her.  The applicant acknowledges that he did so, but cannot recall the date.  Ms Greaves then sets out in her letter what occurred during the conversation.  In his evidence today the applicant gave noncommittal answers which indicated that he does not dispute Ms Greaves version of the conversation. 

5. I should add that Ms Greaves has exhibited to her affidavit her handwritten note of that conversation.  That is a handwritten diary note.  She informed the applicant that the application was listed for hearing on 22 September 2003.  He acknowledged that he was aware of this.  She told him that it was necessary for him to attend the hearing on this date.  The applicant asked what would happen if he did not go to court.  Ms Greaves informed him that if he did not attend the respondent would apply for an order dismissing the application and for an order that he pay the respondent's costs.  She asked the applicant whether he intended to appear.  He responded that he thought so but was unsure.

6. She asked the applicant to contact her if he decided not to attend the hearing.  She explained that if he did not want his application to continue the matter could be finalised by agreement.  The applicant said he would inform her of what he would be doing.  The applicant did not contact her between 5 September 2003 and 22 September 2003.

7. The applicant in his evidence today said that on 22 September 2003 he was sick.  He was coughing, he had a virus, his throat was infected.  He said he knew what to do, which was take paracetamol medicine.  He did not see a doctor.  He had had the same symptoms before and had gone to a doctor who had told him what medicine to take.  He did not attempt to telephone anybody on 22 September 2003. 

8. After 22 September 2003 the procedural history is this.  The applicant filed an appeal.  A directions hearing was held on 12 November 2003 before Weinberg J.  The applicant informed His Honour that he did not appear before Scarlett FM because he was sick.  His Honour adjourned the directions hearing to 26 November 2003.  He said that his view was that it was possible for the applicant to file an application in the Federal Magistrates Court to reopen his case.  A further directions hearing was held on 17 December 2003 before Registrar Efthim.  The applicant was represented by the duty solicitor from Victoria Legal Aid.  An order was made for the applicant to file and serve any affidavit material by 16 January 2004, but he did not. 

9. The applicant, for his application to succeed to set aside the order of

   
   

   22 September 2003, he needs to give an explanation for his non-attendance and he needs to show some prospects of success in his application if it is reheard.  I am not satisfied that he has given an acceptable explanation for not being at court on 22 September 2003.  His evidence indicates that he had either a bad cold or flu or something of that nature.  He does not say that he was so ill that he could not travel into the city to at least say to the court that he was too ill to proceed.  He did not telephone the respondent solicitor.  He had her telephone number and he had spoken to her less than three weeks earlier.  He gives no explanation for not attempting to telephone her.

10. He had been told the possible serious consequences of his not appearing and yet he took no steps to either appear or to have some explanation put to the court for his non-appearance.  Therefore, I am not satisfied that the applicant has given a reasonable explanation or an acceptable explanation for not appearing. 

11. So far as the second basis for the application, that is, whether there are any possible grounds of success is concerned, the position is this.  The applicant is a national of India.  He came to Australia on 14 February 2001.  He lodged an application for a protection visa on 13 March 2001.  The application was refused by a delegate of the respondent on 27 June 2001.  The application for review of this decision was made to the tribunal on 25 July 2001.  The applicant is a member of the Hindu ethnic group or religion.  He is from the Indian state of Hariana which borders the Punjab.  His claim for protection arises out of his support for an independent state for the Sikh people.

12. He claimed to have an uncle, also a Hindu, who was a member of the Pro-Sikh Khalistan Commando Force.  It is known as the KCF.  The applicant claimed to have joined the Akali Dal or Mann political party in 1997 and he claimed he became involved in propaganda work on its behalf.  Whilst at university he was elected to the position of general secretary of the student union.  His election proved unpopular with political opponents.  During a state election there was fighting as a result of allegations of vote-rigging by the National Lok Dal party.  The applicant said that in August 2000 he along with his cousin, was detained and mistreated and kept in custody for some two months. 

13. The police had been looking for his uncle, however, he had gone into hiding.  The applicant was released only with the help of the Akali Dal and a bribe paid by his father.  He was detained on other occasions and released in similar circumstances.  The applicant said that because of these things he was in fear for his safety so he moved to the state of Uttar Pradesh, some 200 kilometres away.  He stayed with another uncle.  He returned home on some occasions before leaving for Australia.  He managed to avoid the police.  He said that his father had advised him that since his departure the police have regularly come to the family home searching for the applicant and his uncle.

14. The tribunal considered that significant aspects of the applicant's evidence was not credible.  The tribunal did not accept that the applicant's uncle as a Hindu was a member of the Sikh group, the KCF.  It considered that even if a Hindu could be a member of the KCF, the applicant's family would have been troubled by security forces well before August 2000, which was years after the worst of the conflict was over.  If the applicant's uncle had been with the KCF the tribunal considered that he would have fled and gone underground long before August. 

15. The tribunal found the applicant's evidence confused about the group of which he said he was general secretary.  It had doubts about the truthfulness of his account generally.  It gave its reasons for this.  It found his evidence about his detention unconvincing.  It could not reconcile his evidence about dates and periods of detention because it differed from his previous statements submitted to the tribunal.  It found his evidence about moving to live with his uncle inconsistent with evidence he had given earlier at the hearing about his enrolment at the university and living near the campus.  It considered that had the applicant been charged with serious offences or had a warrant issued for his arrest the police would have been able to locate him, either at his campus or when he was visiting his home. 

16. Originally the applicant was represented by solicitors.  Contentions of fact and law were filed on behalf of the applicant.  Those contentions refer to the basis for a court reviewing a decision of the tribunal.  They refer to the decisions of the High Court of Australia in S157 of 2002 v Commonwealth (2003) 195 ALR 24, and Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134 of 2002 (2003) 195 ALR 1.

17. What needs to be found is an error of law of such seriousness that it constitutes jurisdictional error.  A breach of the rules of natural justice is such an error.  What is alleged in the contentions is that the applicant was not given the opportunity to comment on country information about India which is referred to in the tribunal's reasons.  Even if it is correct that the applicant should have been given the opportunity to comment on that information and even if it is correct that the applicant was not given that opportunity, I do not consider that it is arguable that that would be a ground for reviewing the tribunal's decision. 

18. The tribunal's decision is one of fact.  It did not accept the evidence of the applicant.  It did not accept that the events and circumstances which he described about himself and his uncle occurred or existed.  Questions of fact are for the tribunal to decide and I can see no arguable basis for setting aside the decision on the basis of the way the tribunal carried out its fact-finding function.  Therefore, I am not satisfied that the applicant has shown that he has an arguable case.  Consequently, the application filed in this court on 17 December 2003 to set aside the orders of Scarlett FM made on 22 December 2003 is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: R. Campbell

Date: 15 April 2004