SZBDA v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1. This matter came before me for directions on 10 March 2005. There was no appearance by the applicant and I dismissed the proceedings pursuant to section 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth). I also ordered the applicant to pay the respondent's costs in a fixed amount. 2. The applicant then filed a notice of motion on 11 March 2005 seeking to set aside the orders which I made on 10 March 2005 and to re-open his case "for further hearing and disposal of". In considering whether to set aside the orders it is relevant for me to consider whether there has been an adequate explanation of the circumstances which led to the judgment being entered, that is to say the reason in this case for the applicant's failure to appear on 10 March 2005. 3. However, the essential question is whether the applicant has demonstrated that there is an arguable case or question raised in the application; see Registrar of Aboriginal Corporations v Murnkurni Womens Aboriginal Corporation (1995) 58 FCR 404. 4. In these proceedings the applicant sought to appeal from a decision of Federal Magistrate Driver dated 20 January 2005 dismissing an application to review a decision of the Refugee Review Tribunal ("RRT") made on 20 June 2003 and handed down on 16 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 5. The applicant is from Gujarat in India. He claimed to have a well‑founded fear of persecution on the ground of membership of a particular social group, namely low caste Hindus. In its decision the RRT concluded that the applicant's claims "have no substance and are complete fabrications". The RRT found that the applicant's claims were inconsistent with the evidence and that the documentary evidence provided by the applicant was self-serving and unsubstantiated. 6. In his amended application filed in the Federal Magistrates Court, the appellant claimed that the RRT overlooked relevant considerations because it failed to consider part or all of the applicant's claims. The applicant asserted that the RRT dealt with his claims on a false basis because he claimed he was poorly assisted by a migration agent whom he called Mr Khan. 7. Federal Magistrate Driver observed at [5] that apart from the assertion in the amended application, there was nothing to support the applicant's claim before the Federal Magistrates Court. The learned Magistrate pointed out that the applicant did not take up the opportunity that he was given to provide evidence in support of his application to the court. He stated that the documents that the applicant furnished went to the merits of the protection visa claims but not to the asserted jurisdictional error. 8. The learned Magistrate observed that the court book disclosed that the migration agent who was assisting the applicant by mid-June 2003 pointed out to the RRT the errors made by the applicant's former migration agent. The Magistrate stated at [5] that the decision and reasons of the RRT made clear that the RRT was well aware of the applicant's assertion that he had been disadvantaged by mistakes made by his previous migration agent. 9. The Federal Magistrate accepted the respondent's submissions, which he recorded in two paragraphs at the end of [7] of his judgment:- "The applicant has failed to indicate any specific matter that the RRT failed to consider. Apart from the mention of stab wounds on his legs the respondent is unable to identify any matter mentioned by the applicant in his revised application for review that was not covered by the RRT in its reasons. The RRT appeared to deal with the claims as made to it orally in the hearing, together with the documentary evidence, which in turn accord with the applicant's claims as set out above in [3]. The RRT gave cogent reasons for rejecting the applicant's claims and for rejecting the documentary evidence placed before it. These findings were properly open to the RRT: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-9; W148/00A v Minister for Immigration (2001) 185 ALR 703 at [64] - [69]. In any event, there is no evidence that the applicant did raise the issue of stab wounds to his legs before the RRT. It is for the applicant to put the transcript of the hearing before the Court to establish that the matter was raised before the RRT. Even if such material was before the RRT, the remarks of the Full Federal Court in WAJW v Minister for Immigration [2004] FCAFC 330 are apposite: "In any event, it is clear that the general finding of the Tribunal quoted […] above is capable of encompassing consideration of all the evidence which was before the Tribunal. It was not obliged to cite each piece of evidence before it: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 ("Yusuf") at [67] - [68] per McHugh, Gummow and Hayne JJ. This contention of the appellant is in substance an argument inviting this Court to interfere with the conclusions on merits which lies only in the jurisdiction of the Tribunal." 10. The learned Magistrate said at [8] that in his view no jurisdictional error in the decision of the RRT had been established. He therefore dismissed the application. 11. The applicant relies on an affidavit sworn 11 March 2005 in support of his motion. He states in the affidavit that he could not appear at the directions hearing on 10 March 2005 because he was suffering from chest pain due to chest infection and that he was unfit to travel and attend any work. The applicant states at [3] of the affidavit that "I would appear without fail on a future date of hearing if granted". 12. Attached to the notice of motion was an undated medical certificate which stated that the applicant had been examined on 10 March 2005 and that he was suffering from chest infection and was "unfit for work/school from 10/3/2005 to 11/3/2005". 13. In the applicant's notice of appeal filed on 9 February 2005 the grounds of appeal are stated as follows: "The honourable federal magistrate has failed to view my claims for a protection visa from all legal aspects and erred in delivering proper justice to me by the substantial and enormous grounds and evidences provided by me in support of my fear of persecution have not been viewed and considered by the honourable federal magistrate in pursuant to various sections of the Migration Act and Convention." 14. The notice of appeal also makes reference to s 91R(1), (1a), (1b) and (1c) and other subparagraphs of section 91R of the Migration Act 1958 (Cth) and states that a proper application of this section was not made in this case. 15. Attached to the notice of appeal is a one-page affidavit dated 9 February 2005 in which the applicant repeats in summary form the basis of his claims for fear of persecution. He states that the evidence was not "checked and verified" by the RRT and the Honourable Federal Magistrate. 16. It is unnecessary for me to consider whether there has been adequate explanation for the applicant's failure to attend court on 10 March 2005. This is because it is plain from the grounds of appeal set out in the notice of appeal and the affidavit attached to it that the appeal does not raise any arguable case. It would therefore be futile to set aside the orders which I made on 10 March 2005. Accordingly, I propose to order that the notice of motion be dismissed. 17. I order the applicant to pay the respondent's costs fixed in the amount of $700.00.