SZGET v Minister for Immigration & Citizenship (No. 2) [2008] FCA 46 (12 February 2008)

Last Updated: 12 February 2008

FEDERAL COURT OF AUSTRALIA

SZGET v Minister for Immigration & Citizenship (No. 2) [2008] FCA 46

MIGRATION – failure to attend hearing of appeal – appeal dismissed – application to set aside judgment - failure to appear on application – application refused – no further document to be accepted



Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)
Federal Court Rules O 35 r 7, O 46 r 7A
Migration Act 1958 (Cth) s 424A, s 425

SZGET v Minister for Immigration & Citizenship [2007] FCA 1994
SZGET v Minister for Immigration & Citizenship and Anor [2007] FMCA 836























SZGET v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1084 OF 2007

BUCHANAN J
12 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1084 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGET Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	31 JANUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion is dismissed with costs.

THE COURT DIRECTS THAT:

1. The Registrar refuse, under O 46 r 7A, to accept for filing any further document from the applicant unless the leave of a judge is first obtained.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1084 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGET Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BUCHANAN J
DATE:	12 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

DISMISSAL OF THE APPLICANT’S APPEAL

1 On 12 December 2007 I dismissed the applicant’s appeal against a judgment of the Federal Magistrates Court of Australia (‘the FMCA’) (SZGET v Minister for Immigration & Citizenship [2007] FCA 1994, see also SZGET v Minister for Immigration & Citizenship and Anor [2007] FMCA 836). The FMCA had dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) which was handed down on 25 July 2006. The RRT decision had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) on 26 November 2004 to refuse the applicant’s application for a protection (Class XA) visa.

2 I explained in my judgment of 12 December 2007 that the appeal had been listed for hearing on three occasions. It was originally listed for hearing on 20 August 2007. In a letter dated 27 July 2007 the applicant asked for an adjournment for six to eight weeks to allow him to find another lawyer to represent him. His request was granted. In fact he was given more time than he sought. The appeal was listed for hearing on a second occasion on 19 November 2007. By facsimile communication on 16 November 2007 the applicant sought a further adjournment. He said he was not well and his barrister was in Sri Lanka. He inferred that an adjournment of even one to two weeks would accommodate his difficulties. Again he was given more time than he sought. The appeal was listed on a third occasion on 12 December 2007. On that occasion the applicant did not seek an adjournment, did not appear and did not give any indication that he could not appear. His appeal was dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) which provides that the Court may make an order that an appeal be dismissed if the appellant fails to attend a hearing relating to the appeal.

NOTICE OF MOTION

3 Under O 35 r 7 of the Federal Court Rules the Court has power to set aside a judgment or order, even after entry, where it has been made in the absence of a party, whether or not the absent party is in default of appearance or is otherwise in default. By notice of motion filed on 22 January 2008 the applicant asked for the exercise of this discretion so that his appeal may be restored to the list and heard. He also sought an order restraining any action on the earlier judgment and order.

4 When the notice of motion was filed it was endorsed with a date for hearing. At the hearing of his notice of motion on 31 January 2008 the applicant failed to appear. I stood the notice of motion down for 30 minutes. The applicant still did not appear. So far as I was able to ascertain the applicant had made no contact with the Court to indicate he could not appear. Although it would have been open to dismiss the notice of motion simply for lack of attendance by the applicant, it seemed to me preferable that I deal with the merits of the notice of motion by reference to the matters relied on by the applicant and having regard to the overall history of the matter. I ordered that the notice of motion be dismissed with costs and indicated that I would publish my reasons at a later date. These are those reasons.

5 By affidavit filed with the notice of motion the applicant stated that a week or so before the hearing on 12 December 2007 his niece ‘had contacted the Court to seek extension’. There is no record in the Court file of any such communication and the suggestion is not consistent with the matters referred to hereunder.

6 The applicant also said in his affidavit that he made arrangements with a Mr Hamid ‘to attend final hearing regardless of whether I made it to the hearing or not on 12 December 2007’. His more recent attempts to contact Mr Hamid, he said, were without success. He said: ‘I was aware that my hearing was on 12 December 2007 but understood that Mr Hamid is taking care of it. I thought a lawyer was taking care of the final hearing when I failed to attend the Court on 12 December 2007’.

7 I understand the applicant to be indicating by these further statements that he was aware the appeal was to proceed on 12 December 2007 but that he had not intended to attend the hearing of the appeal. The arrangements which the applicant wished to make for the conduct of his appeal were matters for him. However the matters to which he referred in his affidavit, accepting them at face value, do not, in my view, constitute any reason why the judgment given on 12 December 2007 should be recalled.

8 The applicant also suggested that he took quick steps to have the matter reinstated. I do not agree. He said that he became aware of the Court’s judgment on 16 December 2007. It was not until five weeks later that he filed his notice of motion. No explanation for that further delay was given.

9 In preparation for the hearing of the applicant’s appeal I had studied the appeal papers. In addition to the lack of any basis disclosed by the notice of motion and supporting affidavit upon which, in my view, the applicant was entitled to have the earlier judgment recalled and his appeal listed for hearing, I also considered whether there was any real risk that an injustice would be caused to him if his appeal was not heard at some stage. I am satisfied that no such injustice would be occasioned. My reasons for this conclusion follow.

EARLIER DECISIONS OF THE RRT AND FMCA

10 The applicant is a citizen of India who arrived in Australia on 8 June 2004 and made an application for a protection (Class XA) visa on 8 July 2004. The application was refused by a delegate of the Minister on 26 November 2004. The decision of the RRT which was considered in the decision under appeal was handed down on 25 July 2006.

11 The applicant was not believed. The RRT said:

‘In consideration of the evidence as a whole and for reasons explained below, the Tribunal is satisfied that the applicant is not a credible witness and that he has fabricated the substance of his claims in order to support his application for a protection visa. In the opinion of the Tribunal, there are a number of substantial inconsistencies in the information provided by the applicant. Of particular concern to the Tribunal is the fact that in the course of the hearing, the applicant gave evidence that he was never involved in any political activities in India but arguably that is the most fundamental claim in the application for a protection visa.’

12 A detailed explanation was given for the RRT’s finding on credibility. The grounds of appeal to the FMCA raised no cogent issue in relation to these findings, which were a matter for assessment by the RRT. As the FMCA correctly found, no jurisdictional error in the RRT decision was identified.

13 The application for judicial review of the decision of the RRT was dismissed on 1 June 2007 (SZGET v Minister for Immigration and Citizenship & Anor [2007] FMCA 836). The decision is carefully reasoned. I see no error in it. The allegations of error which were made by the applicant must certainly be rejected.

THE APPEAL TO THIS COURT

14 The grounds of the applicant’s appeal to this Court against the judgment of the FMCA were as follows:

‘1. His Honour should have found that the Tribunal breached section 424A and 425 of the Migration Act by failing to provide the Appellant an opportunity to provide further comments and/or provide further documents prejudging the documents to be provided.

Particulars

The Tribunal states (RRT decision 11.9 / GB 115.9) that "the Tribunal awaited another two weeks to finalise its decision in order to enable provision of a response and any documents in support." The Appellant contents [sic] that the Tribunal failed to communicate to the Appellant that it was open to the Appellant to make further submissions having indicated that it would be futile to provide the documents.

2. His Honour should have found that the Tribunal had erred when it failed to make a finding of political opinion by the Appellant.

Particulars

‘The Appellant contends that His Honour should have found as submitted by the Appellant’s agent (at GB 100.4 – 100.9) that there was implied political opinion Convention ground without appellant joining any party; thereby the Tribunal erring that the appellant did not suffer Convention related harm (GB 118.8).

3. His Honour should have found that the Tribunal made error in the interpretation of the evidence and failed to apply Rajalingam test.

Particulars

The Appellant repeats the particulars in Amended Application filed in the Federal Magistrates Court.

Ground 1

15 The RRT in this case not only delayed finalising its decision but in fact took into account a response made by the applicant after the time within which to make a response had passed. No respectable argument of breach of s 424A or s 425 of the Migration Act 1958 (Cth) arose from this ground of appeal.

Ground 2

16 This ground of appeal sought a review of findings of fact. It raised no jurisdictional issue.

Ground 3

17 The particulars advanced before the FMCA in support of a similar ground were:

‘a. The Tribunal proceeded to make the decision without giving the consideration of the Rajalingam principles alleged to have taken place instead choosing to apply ordinary civil standards of assessment of evidence;

b. The Tribunal proceeded to make reject the evidence in relation to the harm alleged by the applicant.’

18 The precise content of this ground is elusive but there is no substance in the suggestion that the RRT erred by not following the principles referred to. In large part, the findings against the applicant turned on his credit. Otherwise they were findings of fact. No jurisdictional issue was involved.

ORDERS MADE

19 For the foregoing reasons, the notice of motion was dismissed.

20 When I dismissed the notice of motion I also directed that the Registry refuse, under O 46 r 7A, to accept any further document for filing from the applicant unless the leave of a judge was first obtained. To this point I can discern no merit in the applicant’s attempts to engage any of the processes of the Court to which I have referred above. His persistent failure to attend any of the hearings at which those matters have been listed is a burden on the first respondent, who has been represented on each occasion, and a waste of the Court’s resources, including its arrangements for the provision of interpreters. It will be a matter for any judge from whom leave to file any document may be sought to assess whether such leave should, in the circumstances then presenting, be granted.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 12 February 2008

The Appellant:	The appellant did not appear
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	31 January 2008
Date of Judgment:	12 February 2008