Gounder, Ashni Lata v Refugee Review Tribunal

[1997] FCA 269

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)     No.NG 968 of 1996
)
GENERAL DIVISION	)

BETWEEN:		ASHNI LATA GOUNDER Applicant
AND:		REFUGEE REVIEW TRIBUNAL Respondent
CORAM:	EMMETT J
PLACE:	SYDNEY
DATED:	20 MARCH 1997

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: There is before the court at present an application for the summary dismissal of the application lodged on 12 December 1996.  The application to dismiss the proceedings is made by notice of motion which was filed today, notice of which was given to the applicant by letter of 12 March 1997.  The proceedings were before Beaumont J on 14 February 1997.  On that occasion his Honour stood over for hearing at 3 pm on 5 March the question of the competence of the application, there having been filed in court on that day notice of objection to the competency of these proceedings.

On 5 March the applicant it appears attended at the registry in the morning and said that she was ill and would be unable to come to court that afternoon.  She did not in fact appear when the matter was called at 2.15 before the Registrar and at 3 pm before me.  The matter was therefore adjourned for hearing today and, in accordance with a direction which I then gave, the Australian Government Solicitor wrote to the applicant on 12 March notifying her of the hearing time and of the grounds upon which it was proposed to ask the court to dispose of the matter summarily.

The applicant appears in person today and has acknowledged to me that she received the letter.  After hearing argument on behalf of the Minister, who was joined today as a party for the purposes of arguing competency, the applicant indicated that she wanted time to take some advice.  When pressed as to why she had not done that before she said she did not have the funds and that she had been ill.  She had no evidence to support the assertion that she has been ill, although I do not doubt that she has suffered some indisposition.  She was, however, well enough to come into the registry on 5 March and it is not suggested that she has not been well enough to consult lawyers between then and now to deal with the matters raised before Beaumont J and then subsequently set out in the letter of 12 March.

I will shortly deal with the merits of the application before me today, but I have in mind when considering the application for further time, a view which I have formed, that the proceedings are doomed to failure.  It will therefore involve unnecessary expense not only for the respondent but also for the applicant in circumstances where she has been unable to say that she has been advised that there is any prospect of advancing any argument in support of the proceedings. 

While one would obviously be reluctant to deprive an applicant of a fair opportunity to take advice in relation to proceedings such as these the fact that on the face of it the application is doomed to failure I consider to be a factor which can be taken into account in deciding whether or not to grant further time. In the circumstances I decline to adjourn the matter any further. 

HIS HONOUR: I will now deal with the application.  This is an application expressed to be brought for an order of review pursuant to orders 54 and 54B.  The application is hand written and names “Refugee Review Tribunal (Micheal Choueifate)” as the respondent.  The grounds specified in the application as follows: 

1.Unhappy childhood; 

2.family problem;

3.when returned nowhere to go and stay;

4.the political problem;

5.        other. 

There is no other material after the word "other".  The relief sought is "to stay in Australia and finds it very safe and have a happy life".  It is quite apparent that the application was completed by the applicant without any legal assistance. 

The respondent has filed an affidavit annexing a copy of the decision which is the subject of the application. The conclusion reached by the Tribunal is that “the Tribunal is satisfied that the applicant is not a person to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol”.  “Therefore the applicant does not satisfy the criteria set out in section 36(2) of the Act for the grant of a protection visa”.

The basis upon which the applicant sought a protection visa as recorded in the reasons for decision of the Tribunal are that she did not want to return to Fiji because of the shame and humiliation she would experience because she was not married. There is nothing that appears to me on a reading of the reasons to suggest that any of the grounds set out in section 476(1) of the Migration Act would be applicable. 

I acknowledge of course that I have not had the assistance of any argument by trained lawyers on behalf of the applicant. Nevertheless unless there has been an extraordinary departure from the procedures laid down, there is nothing in the reasons that, it seems to me, would justify any interference by this court. 

The primary issue before me today is the notice of objection to competency. Section 476 of the Act provides that an application may be made for review by the Federal Court of a judicially reviewable decision, a term which is defined in section 475. The affidavit which has been filed on behalf of the respondent makes clear that the decision which the applicant seeks to have reviewed by this court is a judicially reviewable decision.  The consequences of that conclusion are that the only means of review are those provided for in division 2 of Part 8 of the Act.

Section 480, which is within Division 2, provides that the parties to the review of a judicially reviewable decision are the Minister and the applicant in the review.  Section 478 provides that an application under 476 must be lodged with the Registry of the Federal Court within 28 days of the applicant being notified of the decision. Whereas these proceedings were brought within 28 days of the applicant being notified of the decision,, they were not brought against the Minister.

Although the Minister has been joined as a party today for the purposes of arguing the question of competency there were no proceedings brought against the Minister within the period of 28 days. That is to say no application under section 476 was lodged with the Registry in which the Minister was shown as a respondent within 28 days of the applicant being notified. 

My attention was drawn to the decision of the Full Court of this court in Dai Xing Yao v The Minister for Immigration and Ethnic Affairs & Anor, which I understand is still unreported having been delivered on 18 September 1996.  That decision makes clear that the only means of review for a judicially reviewable decision is the process contemplated by Division 2 of Part 8. Accordingly, the provisions of that division must be observed in relation to the review of such a decision.

I was also referred to the decision of Hill J in Reza Barzideh v Minister for Immigration and Ethnic Affairs, 12 February 1997, unreported(Barzideh’s case), which appears to be on all fours so far as competency is concerned with this case. 

That decision was referred to and followed by R.D. Nicholson J in Herman Mutaruha Chikonga v Minister for Immigration & Multicultural Affairs, 6 March 1997 unreported. Nicholson J cited a passage from Hill J's decision to the effect that it follows from section 478 of the Act that an application which is to be lodged with the court within the time stipulated must be an application to which the Minister is a party.

Hill J made some observations which were echoed by Nicholson J to the effect that there may well be an injustice occasioned by the mandatory terms of sections 478 and 480. Be that as it may, if that decision is correct, I have no doubt that the application is incompetent and should be dismissed on that ground. 

The language of section 480 is curious in so far as it says that “the parties to the review of a... decision are the Minister...”. That is to say, the section does not say that the Minister must be joined as a party but simply says that he is a party. On the other hand it is difficult to see what work those words would have to do if Hill J is not correct. I would therefore follow his decision.

In this case the application, as was the case in Barzideh’s case, was one in which the Minister was not named as a party as such. It purported to be an application to which the Tribunal was named as a party. It would follow that the application should be dismissed as incompetent.

However, the respondent has also made a submission that the proceedings should be dismissed summarily on the basis that no reasonable basis for the application is disclosed. Order 54B rule 5 provides that, in applying order 20 rule 2 to applications to which order 54B applies, order 20 rule 2 is to be construed on the basis that where in any proceedings it appears to the court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding no reasonable basis for the application is disclosed, the court may order that the proceedings be stayed or dismissed generally.

The contention on behalf of the respondent is that the grounds specified in the application do not fall within section 476 of the Act. Section 476 limits the grounds upon which an application may be made for review by this court of a judicially reviewable decision to seven specific grounds, some of which are themselves further explained and qualified in the following subsections of section 476.

I have indicated above the grounds specified in the application. None of those is capable in my view of falling within paragraphs (a) to (g) of section 476(1). It follows that, whether or not the proceedings are incompetent for failing to name the Minister as the respondent when the proceedings were commenced by the filing of the application, they were doomed to failure.

Miss Gounder was asked whether she had any intention to seek to amend the grounds. She said that she did but, when asked as to what the application was, she said she wanted some advice.  I have taken that as an indication that at present she has no further ground that she wishes to advance.

In the circumstances it seems to me that the application could not succeed and accordingly, I would make an order under order 20 rule 2 as amended by order 54 rule 5, that the application be dismissed generally. I order the applicant to pay the respondent's costs.

I certify that this and the preceding six pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.

Associate:

Dated:20 March 1997

Heard:            20 March 1997

Place:              Sydney

Decision:        20 March 1997

Appearances:     The applicant appeared in person

Solicitor for the Respondent:  Australian Government Solicitor