SZMYZ v Minister for Immigration & Anor [2009] FMCA 869 (13 August 2009)

Last Updated: 10 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYZ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 869

MIGRATION – No appearance.

Migration Act 1958, ss.422B, 424A Federal Magistrates Court Rules 2001

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 Dranichnikov v MIMA (2003) 197 ALR 389

Applicant:

SZMYZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3092 of 2008

Judgment of:

Raphael FM

Hearing date:

13 August 2009

Date of Last Submission:

13 August 2009

Delivered at:

Sydney

Delivered on:

13 August 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) Application dismissed pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $1,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3092 of 2008

SZMYZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter an application for review of a decision of the Refugee Review Tribunal was filed on the 25 November 2008. The applicant attended a call over with the benefit of a Mandarin interpreter on 18 December 2008, when the case was set down for hearing on 17 June. The applicant then sent in some doctor’s certificates and requested an adjournment claiming that she had a hearing problem. The matter was adjourned to 29 June. On 29 June the applicant appeared but there were problems with her hearing and I further adjourned the case until 15 July at 9.15am so that she could provide proper evidence of her medical condition. I ordered her to pay costs thrown away in the sum of $2,000.00.
2. On 15 July 2009 the applicant did not appear and I dismissed the matter pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 and ordered the applicant to pay total costs in the sum of $4,000.00.
3. The applicant then filed an application to reinstate. That was set down for hearing on 30 July but the respondent did not appear because it had not been served. I explained the requirement for service to the applicant and arranged for service to be effected through the court, adjourning the matter until today, 13 August.
4. The applicant has not appeared at 9.30am when the matter was set down for hearing and is still not present at 9.40am after her name had been called outside the court. I should add that, notwithstanding the lack of evidence about the applicant’s hearing, all the orders of this court and all the decisions made, have been written down in Mandarin and shown to the applicant through the helpful interpretive services of Ms Mi. I am therefore quite satisfied that the applicant has, at all times, known about hearings in the court.
5. The respondent asks that this matter be dismissed pursuant to Part 13, and I propose to do that, but I should make it quite clear that I do not believe that the applicant’s conduct, as currently known to me, would warrant any further indulgence. I am prepared to accept that she has had a hearing problem. I do not know the extent of that problem. I am prepared to accept that it is difficult for a person in her position to prosecute proceedings of this complexity and having a hearing problem does not assist. However, this particular applicant has had more than enough opportunities to petition the court and so far it has heard nothing from her about the merits of her application.
6. In the application filed on 25 November 2008 the applicant claims two things, first:
   • “RRT did not weigh my evidence in China. They did not provide the evidence that I practised Falun Gong is for the purpose of strengthening my claims to be a refugee.”
7. And second:
   • “Procedural fairness has been denied. RRT did not use favourable cases to my application.”
8. These grounds indicate a misunderstanding of the Tribunal’s processes and the provisions of the Migration Act 1958 (the “Act”). They seemed to be suggesting that the Tribunal has a responsibility to act as contradictor and, of course, it has been made quite plain in the authorities that that is not the case. The Tribunal provided a lengthy set of reasons for decision and it is quite clear that it weighed appropriately all the evidence that the applicant produced about her alleged practice of Falun Gong within China, and the persecution which she alleged she was subject to.
9. The Tribunal concluded, as it was entitled to, that it did not find the applicant’s story credible for the reasons that it has given in some considerable detail after providing the applicant with an opportunity both to respond to a s.424A letter and to appear before it. I should mention that the applicant also appeared before a delegate. In regard to the complaint about the Tribunal’s finding in regard to the applicant’s practice of Falun Gong within Australia, this again was purely a matter for the Tribunal to opine upon. The Tribunal was not required to provide evidence that would contradict the applicant’s claim to be a genuine Falun Gong practitioner. It was required to ascertain whether she in fact was.
10. It is hardly necessary for me to say that it is the applicant’s responsibility to establish her own case. Authority for this assertion can be found in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 and Dranichnikov v MIMA (2003) 197 ALR 389.
11. The second allegation made by the applicant that procedural fairness was denied her on the grounds that the Tribunal did not use cases favourable to her application is also a misconception of the requirements of the law. The Tribunal is entitled to consider country information and to make up its own mind as to its strength in regard to the particular case before it. That is what the Tribunal did here. In terms of the requirements of s.422B of the Act I have been unable to find any incidents of failure to comply with the code set out therein for the provision of procedural fairness to an applicant when appearing before the tribunal. The applicant has not told me what the favourable cases that she refers to are. And, as I have now seen her three times, I am able to form the opinion that she is unlikely to be able to do so.
12. I trust that the applicant will bear these comments in mind when considering whether or not to make a further application for reinstatement.
13. I dismiss the application pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001. I order that the Applicant pay the First Respondent’s costs assessed in the sum of $1,500.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 3 September 2009