FEDERAL COURT OF AUSTRALIA

SZHSX v Minister for Immigration and Citizenship [2008] FCA 512

SZHSX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1921 OF 2007

COWDROY J

11 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The Applicant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1                                             By notice of motion filed on 21 February 2008, the applicant seeks to set aside the decision of this Court delivered by Justice Finn on that date. The notice of motion is supported by an affidavit sworn by the applicant on 20 February 2008 which provides the reason for his non-attendance at the hearing of his appeal. The affidavit relevant states:

I went to 88 Goulburn [sic] St., 21C, for the hearing by mistake. I went to the wrong Federal Court. I missed the hearing. I hope that I can be given another chance for the hearing.

2                                             On 25 October 2007 the Registry directed that written submissions be filed by the applicant not later than five working days before the hearing date. No submissions were received by the Court. By letter dated 4 December 2007 the Registry notified the parties of the fixture for the hearing of the appeal on 20 February 2008. When the matter was called before his Honour on 20 February 2008, the applicant did not appear at the hearing. His Honour duly handed down his judgment on 21 February 2008.

3                                             The applicant’s notice of motion is opposed by the first respondent. The first respondent has filed two affidavits sworn by Alison Lena Faron on 19 February 2008 and 27 February 2008. The first affidavit establishes that on 14 February 2008 the first respondent’s written submissions were served on the applicant. Accompanying the first respondent’s submissions was a letter dated 14 February 2008 which relevantly reads:

We refer to the above matter and enclose by way of service, an unsealed copy of the First Respondent’s Outline of Submissions.

We remind you that this matter is listed for a hearing as follows:

Date:  20/02/2008

Time:  10:15

Before:  Finn J

Reason:  Hearing

Location:  Court Room 21C, Law Courts Building, Queen Square Sydney

A map is attached for your assistance.

4                                             Attached to the affidavit is a document verifying delivery of the submissions and of the letter dated 14 February 2008. The verification document bears a signature, but the applicant says that such signature is not his own. The Court accordingly infers that the signature is that of the person who made the delivery. The map attached to the letter dated 14 February 2008 clearly shows the location of the Law Courts Building in Queens Square.

5                                             The second affidavit of Alison Lena Faron sworn on 27 February attaches a letter addressed to the applicant dated 20 February 2008 advising that judgment will be delivered on 21 February 2008. The letter was forwarded by courier to the applicant’s provided address at 5/351 Beamish Street, Campsie, New South Wales.

6                                             In the absence of the applicant Finn J could have dismissed the appeal for want of appearance. Instead, his Honour proceeded to determine the appeal on its substantive merits pursuant to O 52 r 38A(1)(d) of the Federal Court Rules (Cth)(‘the Rules’).

7                                             The applicant’s notice of appeal raised three grounds for determination by Finn J, namely:

1.        The Tribunal had bias against me and misunderstood my claims.

2.        The Tribunal is not satisfied with my fear of Convention-based persecution is well founded. The conclusion is not supported with evidence, and rational and logical foundation. The Tribunal misunderstood my claims and believed that my claims were not Convention-related.

3.        The Tribunal failed to refer to sufficient independent information for the consideration of my application.

8                                             In relation to the first ground of appeal, his Honour found, as did the learned Federal Magistrate, that the allegation of bias had been made without evidence and was ‘clearly without foundation’. Justice Finn also found that the contention that the applicant’s claims had been misunderstood had no basis.

9                                             The second ground of appeal alleged that the conclusions of the Refugee Review Tribunal (‘the Tribunal’) were without evidence or logical foundation. Justice Finn found these complaints to be without substance.

10                                          The third ground of appeal alleged that the Tribunal did not refer to sufficient independent information. The Federal Magistrate had found that there was no obligation for the Tribunal to refer to country information in this matter, although it had nonetheless done so. His Honour agreed with the Federal Magistrate’s conclusion.

11                                          Finn J accordingly dismissed the appeal with costs.

12                                          Where this Court proceeds to a hearing under O 52 r 38A(1)(d) of the Rules, the Court may set aside or vary any order made after so proceeding (see O 52 r 38A(2) of the Rules). The considerations which must guide the Court when such an application is made were considered by the Full Federal Court in Prashar and Others v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 197. Justice Katz, having observed at [11] that O 52 r 38A(2)(a) of the Rules does not specify any criteria, also said at [11]:

However, the considerations which, in my view, would be relevant in the exercise of that power would include at least whether the moving party has provided an acceptable explanation for that party’s absence when the appeal was called on for hearing and the strength of that party’s case on the appeal if the order dismissing the appeal were to be set aside.

13                                          Prashar was applied in MZWOG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1843 and S353 of 2003 v Minister for Immigration and Multicultural Affairs [2007] FCAFC 13.

14                                          The applicant in the current proceedings says that he went to the wrong court. When questioned today he said he went to court 21C at Goulburn Street. The Federal Magistrates Court is located at John Maddison Tower, 88 Goulburn Street, Sydney. The applicant says he went there because he had been there before. He says he arrived there at 9.00 am and by 11.00 am he had realised he was in the wrong court. He says that he telephoned a friend and that such contact was made at midday. This friend spoke English. No satisfactory explanation has been given to the Court why the applicant did not then attend at this Court or to make any inquiries of his appeal. Nor is there any explanation why he did not follow the instructions in the letters of the Registrar and the first respondent’s solicitor indicating the time, date and place for hearing.

15                                          The Court also considers the merits of the applicant’s claim. It is apparent that Finn J thoroughly considered each of the applicant’s claims. The careful reasons of his Honour show that he provided the applicant with a hearing of his appeal, despite the applicant’s absence. The applicant has not suggested that there is other material he wishes to put before the Court, he has filed no submissions, and he does not suggest that Finn J was in error.

16                                          In light of the above, the Court is of the opinion that the grounds stated in the applicant’s Notice of Appeal could not succeed. In these circumstances the Court declines to exercise its discretion to set aside the orders of Finn J. Accordingly the applicant’s application is dismissed with costs.

Associate:

Dated:         11 April 2008