SZMWX v Minister for Immigration & Anor [2009] FMCA 115 (5 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWX v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 115

MIGRATION – Reinstatement of matter dismissed by Registrar for non appearance – where applicant provides no substantial reason for non attendance – whether claims have reasonable prospect of success.

SZBEW v Minister for Immigration [2005] FMCA 999 NAFG v Minister for Immigration (No 2) [2003] FMCA 558 M60 v Minister for Immigration [2003] FMCA 429 NAFG v Minister for Immigration [2004] FCA 389 SZBRB v Minister for Immigration [2004] FMCA 285

Applicant:

SZMWX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2830 of 2008

Judgment of:

Raphael FM

Hearing date:

5 February 2009

Date of Last Submission:

5 February 2009

Delivered at:

Sydney

Delivered on:

5 February 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $1,250.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2830 of 2008

SZMWX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application to reinstate a proceeding for judicial review of a decision of the Refugee Review Tribunal made on 5 September 2008 and handed down on 30 September 2008. On 31 October 2008 the applicant filed with this court an application for review. There were three grounds of that application. The first was that a jurisdictional error had been made, the second was that procedural fairness had been denied and the third was that it was not fair to refuse the applicant's application. In accordance with the usual practice of this court there was stamped upon the application the date and time of a first directions hearing, that was 2.15pm on 20 November 2008. I questioned the applicant about the filing of this document. His answers were not entirely responsive but I believe by the end of the questioning I obtained from him an admission that it was he who came to the court to file the document and that he saw a date and time and place stamped upon it. He said that he did not speak English or read English and was therefore unaware of what the correct date and time was. He did not attend the directions hearing. The Registrar who conducted the directions hearing adjourned the matter to 4 December 2008 at 2.15p.m. with a note that the court would notify the applicant of the new date. There is on file a letter dated
   21 November 2008 addressed to the applicant at both his home address and his P.O. Box advising him of the new date from the respondent solicitors and a further letter of the same date addressed to him at his home address from the court. The applicant says that he did not look in his post box until 5 December 2008 so that he missed the second hearing. He gives no further explanation for his actions.
2. It is now well settled that for a reinstatement application to be successful the applicant should do two things. First, he must provide a good reason why he did not attend the hearings as a result of which his application was dismissed, as it was here on 4 December 2008. Secondly, he must convince the court that he has, at the very least, an arguable case that the Tribunal fell into jurisdictional error in the manner in which it reached its decision; see SZBEW v Minister for Immigration [2005] FMCA 999; NAFG v Minister for Immigration (No 2) [2003] FMCA 558, M60 v Minister for Immigration [2003] FMCA 429; NAFG v Minister for Immigration [2004] FCA 389; SZBRB v Minister for Immigration [2004] FMCA 285.
3. In regard to the first criteria I am not satisfied that the applicant has provided me with a reasonable excuse as to why he did not attend the hearings. I am quite satisfied that he either was aware or could easily have been made aware of the date of the first hearing before the Registrar. He says he speaks no English, a fact that I am prepared to accept, but obviously somebody helped him with the preparation of the application because that is partly written in English and it bears his signature. There is also an affidavit, which is completely written in English and bears his signature.
4. This court deals with many cases of persons from the People's Republic of China, very few of whom speak any English but most of whom manage to attend the hearings. It is an applicant's responsibility to ensure that he is aware of when his matters are being heard in court and this responsibility would, to my mind, extend to his looking in his post office boxes and his own letterbox at reasonably frequent intervals so that if a letter comes from the court or the respondent's solicitors it can be drawn to his attention. The applicant has provided no mitigating circumstances for his failure to do this.
5. Even if my views upon the applicant's conduct are unduly harsh, I would say that having considered the decision of the Refugee Review Tribunal which is based upon a credibility finding, I would be hard put to say that there was any prospect of his being successful in the substantive application. At [CB 78] the Tribunal says:
   • "In the Tribunal's view the applicant gave very confused and at times inconsistent evidence at the hearing about a number of matters. The Tribunal concluded that his evidence was not reliable evidence of the facts he was addressing in his evidence”.
6. The Tribunal then goes on in two detailed paragraphs to explain these inconsistencies and why it came to the finding that it did and which I have extracted. Findings on credibility are, as is well known, the responsibility of the Tribunal “par excellence”. The Tribunal is perfectly entitled on the basis of what it has heard to come to the view expressed at [CB 79]:
   • "There is no plausible evidence before [the Tribunal] that enables it to conclude that the applicant is of interest to authorities in China and will suffer persecution from authorities or anyone else in China either now or in the reasonably foreseeable future because of his political opinion, his imputed political opinion, because he is a member of a particular social group or for any other Convention reason, if he returns to his country.”
7. In the circumstances I am not prepared to grant the applicant the indulgence he seeks in his application. I dismiss the application. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $1,250.00.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: