SZJYL v Minister for Immigration and Citizenship [2007] FCA 1789

FEDERAL COURT OF AUSTRALIA

SZJYL v Minister for Immigration and Citizenship [2007] FCA 1789

SZJYL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR NSD1334 OF 2007

EMMETT J

15 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1334 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJYL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 15 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave be dismissed. 2. The applicant pay the first respondent's costs of the application. 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 NSD1334 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJYL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 15 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Pakistan, who arrived in Australia on 28 December 2005. On 10 February 2006, the applicant applied for a protection (Class XA) visa under the Migration Act 1958 (Cth). On 11 May 2006, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a visa. On 6 June 2006, the applicant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for a review of the delegate's decision. 2 On 24 October 2006 the Tribunal wrote to the applicant, addressing the letter to the most recently provided address for service of the applicant. The Tribunal informed the applicant in the letter that, on the basis of the material in its files, it was not able to arrive at a decision favourable to him and invited him to attend a hearing on 24 November 2006. The applicant did not respond to the opportunity provided by the Tribunal to attend a hearing. He did not appear at the scheduled time and provided no explanation to the Tribunal for his inability to take up the opportunity to give oral evidence. The Tribunal therefore proceeded to a decision on the material before it. 3 The applicant claimed to be a Muslim of the Wahabi sect and that the Wahabi are persecuted in Pakistan by the majority Sunni Muslims. He claimed that he had been assaulted many times, but provided no details as to when or where or in what circumstances. While the Tribunal accepted that the applicant is a national of Pakistan and was prepared to accept his claims about the minority status of the Wahabi population in Pakistan, the Tribunal was not satisfied that the applicant is indeed Wahabi. The Tribunal considered that the applicant's claims were insufficiently supported or tested for it to be satisfied that he has a genuine fear of persecution for a Convention reason. Therefore, on 24 November 2006, the Tribunal affirmed the decision not to grant the applicant a protection visa. 4 On 2 January 2007 the applicant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. The grounds, which are difficult to understand, were: "That the applicant's case was not considered by the respondents as there is a legal and jurisdictional error in the matter, that the amount of persecution was not given any importance. This fear of life of the applicant, as the applicant's life was in great danger of being killed." 5 On 1 February 2007, with the consent of the parties and in the presence of the applicant, the Federal Magistrates Court ordered that the proceeding be set down for hearing on 30 April 2007. A note was included in the orders that, in the event there was no appearance by the applicant, the proceeding may be dealt with and dismissed in his absence. The applicant signed those orders with the assistance of an interpreter. When the matter was called on for hearing on 30 April 2007, the applicant failed to appear and the Federal Magistrates Court ordered that the application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (the Rules). 6 On 25 May 2007 the applicant filed an application to the Federal Magistrates Court for reinstatement of the proceeding. On 21 June 2007, for reasons given on that day, the Federal Magistrates Court dismissed the application for reinstatement. In its reasons for doing so, the Federal Magistrates Court indicated that the applicant had alleged that illness prevented his attendance on the previous occasion. However, no medical evidence was presented to the Court. The applicant also claimed that financial reasons prevented him from attending court, as he lives some 600 kilometres away from Sydney. 7 The Federal Magistrates Court had regard to the fact that the applicant made no attempt to contact the Court, despite the fact that he was able to have access to a mobile telephone. In any event, the Court concluded that the application did not disclose an arguable case for the relief claimed. Accordingly, the Court would have dismissed the application pursuant to rule 44.12(1)(a) of the Rules. There would, therefore, have been no utility in reinstating the proceeding. 8 On 11 July 2007, the applicant filed an application to the Federal Court for leave to appeal from the orders of the Federal Magistrates Court of 21 June 2007. The application for leave to appeal was supported by an affidavit by the applicant, to which a draft notice of appeal was attached. The affidavit asserted that the Tribunal did not comply with the Migration Regulations and that the Federal Magistrates Court decided the case against all the rules of natural justice. No further particulars were provided. 9 In the draft notice of appeal that was filed with the application for leave, the following grounds are stated: "(1) that the applicant did not received [sic] the incitation [sic] of hearing in the time as per migration regulation 4.35D;