SZMSU v Minister for Immigration & Anor [2009] FMCA 101 (9 February 2009)

Last Updated: 17 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 101

MIGRATION – Application to set aside Order dismissing proceeding by reason of applicant’s failure to appear at scheduled hearing – whether the applicant’s explanation was reasonable in all the circumstances – whether the applicant had an arguable case for establishing jurisdictional error in the decision of the Refugee Review Tribunal.

Federal Magistrates Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant:

SZMSU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2354 of 2008

Judgment of:

Emmett FM

Hearing date:

9 February 2009

Date of Last Submission:

9 February 2009

Delivered at:

Sydney

Delivered on:

9 February 2009

REPRESENTATION

Applicant appeared in person assisted by a Mandarin interpreter

Solicitors for the Respondent:

Ms C. Kelso, Australian Government Solicitor

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2354 of 2008

SZMSU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 3 December 2008, this Court made an Order dismissing the proceeding commenced by the applicant by way of application, filed on 10 September 2008, seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 23 July 2008. The proceeding was dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicant to appear at that hearing.
2. On 15 January 2009, the applicant filed an application essentially seeking an order that the Order made by this Court on 3 December 2008 dismissing his proceeding be set aside. In support of his application for reinstatement the applicant filed an affidavit, affirmed 24 December 2008, in the following terms:

“On 24 December 2008 I, [the Applicant] of [address] affirm:

1. I am the applicant in these proceedings.

2. I made great apology to the Federal Magistrate Emmett for not attending the Hearing dated 3 December 2008. I think it might my hearing mistake. I was told 3 December 2008 but I remember 5 December. In the evening of 4th December 2008 I took the letter about my hearing date, I found 3th (sic). I very regretted for my serious error. I was advised to apply the Honourable Judge to granting me a chance for Hearing.”

3. At the commencement of the hearing, the applicant was asked where he presently lived and the applicant informed the Court that he had moved three days ago, however, he was unable to give the Court his new residential address, nor provide to the Court any other address where he may be contacted.
4. The applicant said that he would need to contact his landlord in order to find out where he lived. The Court gave the applicant an opportunity to make inquiries of his residential address, however, he was unable to provide any further information about his residential address. An applicant is required to provide details of his residential address to the Court and to the first respondent in order to have a valid application before the Court. The applicant has failed to provide those details.
5. In the circumstances, it appears to me that by failing to provide an address or any contact details the application may not be valid. In any event, the application should be dismissed for the Reasons below.
6. I note that the applicant attended a directions hearing before me on 7 October 2008. On that occasion the applicant was given leave to file and serve an amended application giving complete particulars of each ground of appeal relied upon by the 14 November 2008. The grounds of the applicant's application are as follows:

“1. The delegate of the Refugee Review Tribunal said in his decision [66 of his decision] “The Tribunal havin (sic) found that the applicant has bo (sic) genuibe (sic) ibterest (sic) in Falun Gong, also finds he will not be motivated to engage in any Falun Gong-related conduct if he returns to China.”

2. The Refugee Review Tribunal has also bias towards my application which caused its decision unfair.

3. The Tribunal failed to consider my application according to the S424A of the Migration Act 1958”

7. Plainly the grounds of the application make bare assertions of error and do not disclose an issue capable of review by this Court.
8. No further document was filed on behalf of the applicant in accordance with the directions of the Court made on 7 October 2008. However, on 28 November 2008, the applicant filed a letter to the Court which stated the following:

“Dear Judge of Federal Magistrates Court of Australia,

First I thank you for your sending me a free legal solicitor for my case. He met me today at hid office to give me advice for my case. He said after reading my file, he couldn’t find jurisdictional errors in the decision of the Refugee Review Tribunal and it is impossible for me to win at the Court. He didn’t intend to write an amended application for me. But I will implore you could you give me a chance by returning my matter to the Tribunal for further consideration because I can’t return to China. I will be deprived of my belief of Falun Gong and persecuted by the Chinese government.

I requested that you could arrange me a mandarin interpreter.

Yours truly

[Applicant]”

9. The applicant received free legal advice pursuant to the NSW RRT Legal Panel Advice Scheme on 24 November 2008 from Mr Mark Campbell.
10. The explanation provided by the applicant in his affidavit, affirmed 24 December 2008, is entirely inadequate and unsatisfactory in circumstances where the applicant attended the first Court date before me, with the assistance of a Mandarin interpreter, and the Court went to some length to ensure that every direction was interpreted for the benefit of the applicant and the difficulties with the grounds of his application made clear to him.
11. The applicant was also provided with a copy of costs schedule of this Court and the consequences, if unsuccessful in his application, were explained to him. In the circumstances, I am not persuaded that the applicant has a reasonable explanation for his failure to appear and there is no ground presently before the Court that discloses an arguable case with any reasonable prospect for success for establishing jurisdictional error in the decision of the Tribunal.
12. Accordingly, the application in a case, filed on 15 January 2009, is dismissed with costs.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

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

Deputy Associate: E. Maconachie

Date: 13 February 209