Jian, W.C. v Bolkus, B
[1994] FCA 95
•10 MARCH 1994
WANG CHEN JIAN v. SENATOR NICK BOLKUS, MINISTER FOR IMMIGRATION AND ETHNIC
AFFAIRS
No. ACTG49 of 1993
FED No. 95/94
Number of pages - 14
Administrative Law
(1994) 33 ALD 763 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NEAVES J
CATCHWORDS
Administrative Law - Judicial review - Application for order of review in respect of decision refusing refugee status - Applicant failing to comply with orders directing that affidavits be filed and served within specified times - Motion by respondent that proceeding be dismissed - Application foreshadowed to amend application for order of review - Principles to be applied - Whether grounds of substantive application have substance is a relevant consideration.
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1)(h) and 5(3)(b)
Federal Court Rules, Order 10, r.7
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
HEARING
CANBERRA, 4 February 1994
#DATE 10:3:1994
Counsel for the Applicant: Mr C.M. Erskine
Solicitors for the Applicant: Gallens Crowley and Chamberlain
Counsel for the Respondent: Mrs J. Bonsey
Solicitor for the Respondent: Australian Government Solicitor
ORDER
THE COURT:
1. Orders that the motion notice of which was given by the respondent on 20 January 1994 be adjourned to 14 April 1994.
2. Orders that the costs of the motion be reserved.
3. Directs that the applicant file and serve not later than 25 March 1994 notice of a motion returnable before the Court on 14 April 1994 for leave to file and serve an amended application under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
4. Directs that the notice of motion be accompanied by a draft of the proposed amended application setting out with particularity the grounds upon which the applicant seeks to rely and by the affidavits upon which he will seek to rely in the event that leave is granted to file and serve the amended application.
5. Grants liberty to each party to apply to the Court on 7 days' notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
NEAVES J Before the Court is a motion, notice of which was given on 20 January 1994, on behalf of Senator Nick Bolkus, Minister for Immigration and Ethnic Affairs, ("the respondent") for the following orders -
"1. That the proceeding be dismissed as to the whole of the relief claimed pursuant to Order 10, Rule 7 of the Federal Court Rules.
2. That the Applicant pay the Respondent's costs."
The proceeding referred to is an application by Wang Chen Jian ("the applicant") under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of a decision made by a delegate of the respondent on 25 June 1993 that the applicant does not have the status of a refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967. That application was filed on 26 July 1993. The grounds on which the order of review is sought, as set out in the application, are as follows:
"1. That the Respondent breached the rules of natural justice by his failure to provide the Applicant the opportunity of an oral hearing prior to making his final decision refusing the Applicant refugee status.
2. That the Respondent's decision refusing the Applicant refugee status was an improper exercise of the power conferred by the Migration Act 1958 (Commonwealth) in that:
(a) He took into account irrelevant considerations in making the decision namely, hearsay material with no basis in fact.
(b) He failed to take into account relevant considerations, namely the well grounded fear of persecution held by the Applicant should the Applicant be deported to the People's Republic of China.
(c) That the Respondent's decision was so unreasonable that no reasonable person could have made that decision, namely that the Applicant is not a refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967."
Order 10, r.7 of the Federal Court Rules provides:
"7. (1) Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice:
(a) if the party in default is an applicant - for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding;
(b) if the party in default is a respondent - for judgment or an order against him; or
(c) for an order that the step in the proceeding be taken within the time limited in that order.
(2) The Court may make an order of the kind mentioned in subrule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just.
(3) This rule does not limit the powers of the Court to punish for contempt."
Reference should be made to other provisions in the Federal Court Rules. Order 54, r.1 provides that, subject to Order 54, the Rules of Court prescribe the manner of making an application under the Judicial Review Act. Order 4, r.1 provides that, except as otherwise provided in the rules, all proceedings in the Court's original jurisdiction are to be commenced by filing an application. By Order 4, r.6, the applicant is to file and serve with the application either an affidavit or a statement of claim, whichever is appropriate, showing the nature of the applicant's claim and the material facts on which it is based. Order 54, r.3 provides:
"3. (1) On the filing of an application for an order of review or as soon afterwards as is practicable, the applicant shall file copies of such of the following documents as are in his possession:
(a) a statement of the terms of the decision the subject of the application; and
(b) a statement with respect to that decision furnished to the applicant pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 or section 28 of the Administrative Appeals Tribunal Act 1975, or any other statement furnished by or on behalf of the person who made the decision purporting to set out findings of facts or a reference to the evidence or other material on which those findings were based or the reasons for making the decision;
unless a copy of that document has been filed previously in the proceeding.
(2) An applicant who files a copy of a statement pursuant to subrule (1) of this rule shall serve a copy of the statement on the other parties to the application within 5 days of filing."
The applicant did not, at the time of filing the application, file an affidavit or statement of claim as required by Order 4, r.6 or file copies of the documents referred to in Order 54, r.3. The application was listed before the Court for directions on 6 August 1993 but, as the application had not been served on the respondent at the time the matter came before the Court, the directions hearing was adjourned until 8 October 1993, with liberty to the parties to apply on 2 days' notice. Later on 6 August 1993 the application was served on the Australian Government Solicitor, the solicitor for the respondent.
By letter dated 18 August 1993, the Australian Government Solicitor wrote to Messrs Gallens Crowley and Chamberlain, the solicitors for the applicant, requesting that the documents required to be filed and served by the Federal Court Rules to which I have referred be filed and served and that the applicant furnish the following particulars:
"(i) In respect of ground 1, is it alleged that the Applicant sought an oral hearing and if so;
(a) when was such an oral hearing requested;
(b) in what manner was such a request for an oral hearing made; and
(c) to whom was the request for an oral hearing made.
(ii) In respect of ground 2(a), what is the hearsay material said to have been taken into account by the Respondent when making his decision and said to have had no basis in fact?"
On 22 September 1993, a telephone conversation took place between the solicitors for the parties in which the solicitor for the applicant expressed the view that it was unnecessary for the application to proceed at that stage on the ground that, if a cross-appeal was lodged in another matter (No. ACT G 82 of 1993) then pending in this Court and was successful, the applicant would not need to proceed at all with the application. The solicitor for the applicant stated that the applicant would be seeking an order from the Court that the applicant need not file affidavit evidence in support of the application until the expiration of 28 days from the date of the determination of the proposed cross-appeal in the abovementioned matter.
By letter dated 24 September 1993 the Australian Government Solicitor wrote to the applicant's solicitors stating that, when the matter came before the Court for directions on 8 October 1993, the respondent would seek an order that, within 14 days, the applicant file an affidavit in support of the application and answer the particulars sought in the letter dated 18 August 1993.
At the directions hearing on 8 October 1993, the Court, after hearing submissions from both parties, gave the following directions:
1. The applicant answer the request for particulars contained in the letter dated 18 August 1993 not later than 22 October 1993.
2. The applicant file and serve the affidavits on which he intends to rely in support of the application not later than 5 November 1993.
3. The matter be listed for directions on 12 November 1993.
On 22 October 1993 the solicitors for the applicant wrote to the Australian Government Solicitor in the following terms:
"We refer to your letter of 18 August 1993 and the subsequent Appearance before His Honour Mr Justice Neaves on 8 October 1993. We are instructed to answer your request for further and better particulars as follows.
(i) (a) The applicants cannot specify the exact date when the oral hearing was requested, but state that from approximately April 1992 until June 1993 numerous requests were made;
(b) The requests were made both orally and in writing; and
(c) Requests were made to various officers within the Department including Messrs Illingworth, Barnsley and officers of Legal Branch.
(ii) The Department purported to rely on various unnamed and unspecified sources and information received from third parties with no direct knowledge of the facts relied upon. In particular, we state that the following information was hearsay.
(a) Reference made to reports received from the Japanese Embassy which 'informed us that it has received no reports of harsh treatment. The Chinese Ministry of Foreign Affairs has told the Embassy that official action would be restricted to counselling'.
(b) We have spoken recently in private to two officials in Guandong Provence, who are not involved in internal security work, but are in a good position to gain knowledge about returned illegal departees. They told us that illegal departees who had been repatriated from Hong Kong to Guandong are normally given counselling by their work units ...'.
(c) A senior official in the Hong Kong Immigration Department has told the Australian Consulate General in Hong Kong that 'while the Hong Kong authorities do not monitor illegal PRC departees, after their repatriation to China, people who have been interviewed following repeated illegal departure to Hong Kong, have not reported having been subjected to any punishment'.
(d) Purported reliance on a report from the Red Cross through Mr Angus Norris.
(e) Officers in the relevant area of the British Embassy here have told us their Embassy had not heard of any harsh treatment of illegal PRC departees who had been repatriated from Hong Kong including in cases where individuals had departed illegally two or three times.
(f) Information contained cablegram from DFAT in Beijing to DIEA on 17 May 1993 in relation to the Eastwood returnees.
(g) Statutory declaration from confidential source declared on the 8th day of May 1993.
(h) Statutory declaration of Leonard Keith Leerdam declared on 20th day of May 1993 purporting to relate information gained from an unidentified source.
(i) Reference to an alleged conversation between the Australian Ambassador in Beijing and the Chinese Foreign Minister, Mr Qian Qichen on 23 December 1992.
(j) Reference to an alleged conversation between 'Australian officials in Beijing' and 'a senior official of the PRC Ministry of Foreign Affairs Consular Department' on 22 December 1992.
(k) All cables from DFAT and overseas posts including Beijing, Shanghai, Hong Kong and elsewhere which cite alleged conversations with or information gained from unnamed sources or informants sent to DIEA Canberra pertaining to information sought by DIEA concerning the political situation in China and the treatment of departees.
We trust that this answers your request for particulars, however we reserve our right to raise further matters should they become evident on our further research."
The applicant failed to comply with the direction given on 8 October 1993 that the affidavits on which he intended to rely be filed and served by 5 November 1993.
On 8 November 1993, an affidavit sworn by Marion Le on 4 November 1993 was filed and served on behalf of the applicant. The affidavit contained 6 paragraphs reading as follows:
"1. I am the President of the Indo China Refugee Association
(ACT) Inc.
2. I was the Applicant's representative at the time of (sic) his application for refugee status was determined.
3. I have been authorised by the Applicant to swear this affidavit on his behalf. The facts deposed to are within my own knowledge and belief, save where I refer to the source of my information and belief.
4. On 1 March 1992 the Applicant lodged an application for refugee status. That application was rejected on 18 March 1992.
5. On 26 March 1992 the Applicant lodged an application for a review of that decision with the Refugee Status Review Committee.
6. On 25 June 1993 the Ministers (sic) Delegate determined that the Applicant was not a refugee. Annexed hereto and marked with the letter 'A' is a true copy of the Delegate's determination and reasons."
Annexure "A" to the affidavit consisted of a copy of a letter dated 25 June 1993 addressed by Michael John Clisby, a delegate of the respondent, to the applicant informing him of the decision refusing his application for refugee status and a copy of document described in the letter as a copy of "the delegate's determination and reasons for making it".
The filing and serving of the affidavit sworn by Mrs Le would not have constituted a compliance with the direction given on 8 October 1993 even if the filing and serving had occurred within the time then specified.
On 9 November 1993, the solicitor for the respondent informed the solicitor for the applicant that, in his view, the affidavit of Mrs Le did not comply with Order 4, r.6 of the Federal Court Rules and that the respondent required that an affidavit complying with that rule be filed and served as requested in the letter dated 18 August 1993.
On 12 November 1993, the matter came before the Court on a directions hearing. The Court directed that the matter proceed on affidavit evidence, that the applicant file and serve any further affidavits on which he intended to rely not later than 10 December 1993, that the respondent file and serve any affidavits on which he intended to rely not later than 7 January 1994 and that the applicant file and serve any affidavits in reply not later than 21 January 1994. The matter was adjourned for further directions on 11 February 1994, the parties having liberty in the meantime to approach the District Registrar of the Court to fix a date for hearing of the matter if all affidavits had then been filed and served.
On 9 December 1993, the solicitor for the applicant telephoned Mr G.C. McCarthy, the solicitor for the respondent, and discussed the timetable for the filing of affidavits in the matter. According to the affidavit of Robert James Powrie, the solicitor for the applicant, sworn on 4 February 1994, the following conversation took place:
"I said 'It is pointless us putting on affidavits at this stage given that the latest boat has a couple of the Jeremiah's on board. This is critical to our case'. He said 'I do not see how the return of the Jeremiah's affects the Isabella's'. I said 'It is obvious. The Department relied on the fact that the Jeremiah's were not persecuted on their return to China. These people have just returned, surely they can given (sic) evidence as to the true situation. If the Department is relying on them then let them say what happened'.
He said 'If you want to write to us saying what the affects (sic) are, or if Marion Le wants to write to the Department direct that's OK but I do not see why it should stop proceedings'. I said 'Marion has already spoken to Mark O'Sullivan (the Deputy Secretary) and he apparently agrees that their evidence is very relevant'.
He said 'OK, well I'll get instructions, but I don't see why we would consent'."
"Jeremiah" is the name of a vessel on which persons claiming to be refugees arrived in Australia. "Isabella" is the name of the vessel on which the applicant and other persons claiming to be refugees arrived in Australia. The practice has apparently developed of referring to the persons who arrived in a particular vessel by reference to the name of the vessel.
By letter dated 16 December 1993 the solicitor for the applicant wrote to the Australian Government Solicitor in relation to the proceedings brought by the applicant and some 25 other persons. The letter read:
"We refer to recent telephone conversations between Mr Powrie of our office and your Mr McCarthy concerning the AD(JR) application. As stated, our clients are challenging the decision of the Minister's delegates on a number of grounds. In particular, we state that the delegates all fell into error in relying on 'intelligence' from an unnamed source in China in determining our clients' refugee applications. The delegates claim that the Isabella group were in a similar position to those of the Jeremiah group in terms of public profile and therefore the treatment of the Jeremiah returnees was relevant to the determination of the Isabella's. The 'source' claimed that the Jeremiahs were all doing well financially and had not suffered persecution. The veracity of that 'evidence' is fundamental to the issues to be determined.
As you are aware, a number of former Jeremiah returnees arrived in Darwin aboard a boat containing more asylum seekers on or about 24 November 1993. Those returnees are best placed to shed light on the true situation for involuntary returnees to the PRC. We therefore request you to consent to a variation of Mr Justice Neaves' timetable to allow us sufficient time to interview and take statements from the former Jeremiahs. We advise that Ms Marion Le is travelling to Port Hedland shortly after Christmas for this purpose. We hope to be in a position to file that material within 28 days after Ms Le's return to Canberra. Could you please obtain your client's instructions as a matter of urgency. If you do not consent, then we will have to approach the Court to seek the variation required.
We look forward to your prompt response."
At the time of writing this letter, the applicant was already in default in complying with the direction given on 12 November 1993.
On 17 December 1993, Mr McCarthy informed Mr Powrie that his instructions were not to consent to an extension of time within which the applicant was to file all affidavit material. He also informed Mr Powrie that his instructions were to file forthwith a notice of motion for an order that the substantive application stand dismissed if the affidavit material was not filed within 7 days from the date of the order.
Telephone conversations took place between Mr Powrie and Mr McCarthy and between Mr Powrie and officers of the Department of Immigration and Ethnic Affairs on 20 and 22 December 1993. On the latter date, Mr McCarthy informed Mr Powrie, in effect, that the respondent was not prepared to extend the time within which the applicant was to file and serve the affidavits on which he relied. Mr Powrie informed Mr McCarthy that he, Mr Powrie, would be on leave until 4 January 1994 and that Mrs Marion Le was going to Port Hedland, Western Australia, shortly after Christmas and would not be returning until mid January 1994. He said he could not do anything further until then.
On 9 January 1994, Mr Powrie was informed by Mrs Le that she had injured her back and had not yet travelled to Port Hedland. She said she was leaving for Port Hedland on 11 January 1994.
On 12 January 1994, the Australian Government Solicitor wrote to the applicant's solicitor in the following terms:
"I refer to the Order made by His Honour Mr Justice Neaves on 10
(sic) November 1993 that each of the Applicants in matter numbers ACT G49-G74 of 1993 file their affidavit evidence in chief by 10 December 1993.
I give notice that if such evidence is not received from each of the Applicants in these matters within seven days from the date thereof, I am instructed to file Notices of Motion for orders that each of the applications be dismissed for want of prosecution."
On 15 January 1994, Mr McCarthy spoke to Mr Powrie enquiring if the applicant was likely to be filing his affidavit evidence within the 7 days mentioned in the letter dated 12 January 1994. According to Mr McCarthy, Mr Powrie replied to the effect that he certainly hoped to be able to do so.
On 19 January 1994, Mr McCarthy again spoke to Mr Powrie. Mr Powrie requested further time within which to file the affidavit evidence "as he needed to take instructions from Ms Marion Le who is yet to return from Port Hedland". Mr McCarthy informed Mr Powrie that his instructions were to proceed with the notice of motion.
On 20 January 1994, notice of motion presently before the Court was filed and served.
On 21 January 1994, the solicitors for the respondent wrote to the Australian Government Solicitor in the following terms:
"I refer to my telephone conversation with Mr Geoff McCarthy of your office on Thursday, 20 January 1994. I confirm the following.
I am conscious of the failure to lodge the affidavits in support of our clients' applications in accordance with the directions of His Honour Mr Justice Neaves.
Our failure to comply has been out of my control and as will be discussed below, it now appears that any affidavit material that could have been filed earlier, would have been insufficient. I note that you claim that our delay has been inordinate but with respect, I disagree with this conclusion. As you are aware, the applications for Wang and others (the Isabella Group) are closely connected to the returnees of the Jeremiah Group. One of the purported reasons for refusing the Isabella Group refugee status, was based on the non persecution of the Jeremiah returnees. These particular matters were thrown into a far greater degree of complexity upon the arrival of a further boat in Darwin in late November 1993.
We advised you of these complexities and even requested that you contact your client to discuss the ramifications of the Jeremiah returnees on that boat. The ramifications, it seemed to myself and my client, were quite obvious. We note that my client, Ms Marion Le and I had discussions with Mark Sullivan and others within the Department. For obvious reasons, we were not keen to put on any affidavit evidence at that time until we were able to clarify the true situation. You agreed with us as late as 20 December 1993 not to request affidavits in the Isabella matters until you had proper instructions. We acknowledge that you advised us late on 22 December 1993 that you would insist on our filing affidavits.
I advised you at that stage, that we were now running into time difficulties due to the Christmas break and the imminent departure of Marion Le to Port Hedland shortly after Christmas. At the time of talking to you, I had been informed by Marion Le that she was leaving Canberra for Port Hedland on Sunday, 2 January 1994 and returning on Saturday, 8 January 1994. This would have enabled me to take further instructions from her in relation to the Jeremiah returnees and all other matters upon her return. I also informed you that I would (be) absent from the office due to the Christmas break until Tuesday, 4 January 1994.
Upon my return I attempted to contact Marion Le and I was advised that she had not yet left for Port Hedland as she had suffered a serious back injury shortly after Christmas and on medical advice, was unable to travel to Port Hedland. I was unable to see Ms Le until 10 January 1994 and she informed me that she was travelling to Port Hedland the following day. Ms Le did not return from Port Hedland until Wednesday, 19 January 1994.
The instructions she has now given me make it quite apparent that she had further instructions which would impact significantly on this case. I am in the process of attempting to have those instructions reduced into affidavit form for Ms Marion Le to take with her to Port Hedland on 26 January 1994. I am instructed that Ms Le will be returning from Port Hedland on or about 31 January 1994 and we should be in a position to file all necessary documents, including affidavits in support on or before 2 February 1994.
I also confirm my advice that we will be making significant changes to the Application for Judicial Review and this will be served on you shortly. I am also instructed to seek an amendment to the timetable set out by His Honour Mr Justice Neaves on 2 February 1994 (sic). I shall be filing and serving a Notice of Motion to this effect shortly with a supporting affidavit from me. Whilst I appreciate your concern to have this matter dealt with expeditiously, I must stress most vigorously that neither myself nor my clients have any interest in or reason for, delaying this matter. To the contrary, all of the Isabella Group (who have not yet received refugee status) are unable to work and are relying on the charity of the Catholic Refugee Association and others. The hardship caused to the Isabellas and the drain of resources on the Catholic Refugee Association make it imperative for us to have the matter dealt with as quickly as possible. However, you must appreciate that given the complexity of these issues and the need to have the matters dealt with fairly and on the real issues in dispute, it would be irresponsible of me to file any material for the sake of complying with Mr Justice Neaves' orders, where those documents do not reflect the true issues in dispute. As stated previously, it is certainly in my clients' interests to proceed expeditiously and I have no personal desire to delay this matter unnecessarily. I will therefore endeavour to file and serve any amended application and further supporting affidavits at the earliest possible opportunity."
In his affidavit sworn on 4 February 1994, Mr Powrie has deposed to the following:
"12. On Monday, the 24th of January 1994 I received a telephone call from Marion Le. I was advised by Mrs Le and verily believe that she returned from Port Hedland at 7.00 am that morning. During that day Mrs Le attended my office and delivered eight (8) 90 minute audio cassettes which I had to have transcribed. The material contained on those tapes consisted of draft affidavits to be sworn by certain members of the Jeremiah boat. I was advised by Mrs Le that she was returning to Port Hedland on Wednesday, 26 January 1994.
13. At 11.20 pm on Tuesday, 25 January 1994 I collected the completed documents from the office word processor operator. I then delivered those documents to Mrs Le at her home address.
14. On Tuesday, 2 February 1994 I received a telephone call from Mrs Le who advised me that she had returned from Port Hedland at approximately 7.20 am on Tuesday, 2 February 1994, but had to go straight to school. I am advised by Mrs Le that she is employed full time as a teacher at St. Francis Xavier High School and would not be able to deliver the executed documents until later in the week.
15. On the 2nd of February 1994 I had a further telephone conversation with Geoff McCarthy. He said words to the effect of 'We have not got any of your affidavits are you going to serve them on us?'.
I said 'We have some affidavits sworn and I am waiting for some more from Marion. I have also got others prepared but not yet sworn. This is proving far more difficult that
(sic) I thought'.
He said 'If you can get the affidavits to us it is likely that we will not proceed with the Notice of Motion on Friday. It is obvious that I won't have much to go on with, if you provide the affidavits'.
I said 'OK, I will get what I have got delivered to you straight away. I will also put our draft affidavits in for you so you know what else we are doing'.
16. I then caused a letter to be sent enclosing copies of a number of draft and executed affidavits...
17. Approximately one hour later I rang Geoff McCarthy and said: 'Have you received our documents?'
He said 'Yes, but I haven't really looked at them. I'll have to get instructions and let you know whether we will be proceeding.'.
I said 'Can you let me know as soon as possible because if you do proceed, then obviously I will have to prepare for the hearing'.
18. At approximately 2.30 pm on Thursday, 3 February 1994 I was advised by Geoff McCarthy that his instructions were to proceed with his application."
At the time the motion came before the Court, neither the affidavits to be relied on by the applicant nor the amended application and the notice of motion referred to in the letter dated 21 January 1994 had been filed.
It is clear that the applicant has, within the meaning of Order 10, r.7 of the Federal Court Rules, failed to comply with orders of the Court directing him to take a step in the proceeding, namely the orders made on 8 October 1993 and 12 November 1993 directing that he file and serve the affidavits on which he intends to rely in support of the application not later than the dates specified. It is also clear that the applicant's failure is continuing. Further, no application was made to the Court to vary the direction given on 12 November 1993 that the affidavits be filed and served not later than 10 December 1993. Thus the only condition upon the power to make an order under that rule has been satisfied. The question, however, remains whether the circumstances are such that the power conferred by the rule should be exercised. As the Court observed in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at p.396, not every failure to comply with a procedural direction will appropriately result in the dismissal of the proceeding: the rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable and of the likely serious consequences to an applicant of staying or dismissing a claim.
Guidance as to the circumstances in which the power conferred by Order 10, r.7 should be exercised is provided in the following passage from the joint judgment of Wilcox and Gummow JJ in the case cited (see pp.396-7):
"The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding. In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default."
See also per Pincus J at p.402.
In considering whether an order should be made dismissing the proceeding, it is appropriate to have regard to the grounds upon which the applicant relies in challenging the decision refusing him refugee status and whether those grounds appear to have substance. The grounds set out in the application filed on 26 July 1993 are quoted earlier in these reasons.
The first of those grounds alleges a breach of the rules of natural justice. Counsel for the applicant informed the Court that this ground is intended to raise only the issue that was the subject of the proceeding in this Court intituled Zhang de Yong v Minister for Immigration, Local Government and Ethnic Affairs in which judgment was given by French J on 6 October 1993 (reported (1993) 118 ALR 165) and which is the subject of an appeal to a Full Court of this Court sub nom. Chen Zhen Xi v Minister for Immigration and Ethnic Affairs, that appeal having been heard but not yet determined. In other words, that ground will stand or fall in accordance with the judgment of the Full Court.
The Court was also informed by counsel for the applicant that Ground 2(a) is not to be pressed.
Ground 2(b) lacks substance. The decision-maker concluded that the applicant's assertion that he had a well founded fear of persecution should he return to the People's Republic of China could not be accepted. It cannot be said that he failed to take that assertion into account.
Ground 2(c) is stated in general terms, namely that the decision was so unreasonable that no reasonable person could have made it. The matters relied upon to support this ground are not particularised or otherwise identified in the application or in any other document. In the course of his submissions, counsel for the applicant stated that what is intended to be argued under this ground is that the delegate of the respondent relied on a statement that when the "Jeremiah" boat people went back to the People's Republic of China they were not persecuted but the material before the delegate was "so negligible as to amount to not being evidence upon which any weight could be given".
Counsel for the applicant then foreshadowed an amendment of the application to add a ground based on ss.5(1)(h) and 5(3)(b) of the Judicial Review Act and the filing in support of that ground of affidavits obtained or to be obtained from a number of "Jeremiah" boat people who, having returned to the People's Republic of China after being refused refugee status in Australia, returned to Australia towards the end of November 1993 to again seek refugee status. This evidence is said to relate to the question whether the "Jeremiah" boat people were persecuted on their return to the People's Republic of China.
To establish this ground, it is necessary that the applicant, by an examination of the findings of fact expressly or impliedly made by the decision-maker, identify with particularity the relevant finding or findings of fact and the basis upon which that finding is, or those findings are, said to be critical to the decision that the applicant be refused refugee status. Having done so, it is necessary for the applicant to establish that there was no evidence or other material before the decision-maker to justify the making of the decision. The applicant must also establish, by admissible evidence, that the particular fact or facts so identified did not exist: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at pp.219-224.
The material at present before the Court goes no distance towards establishing that the applicant has an arguable case either on ground 2(c) as set out in the application or on the foreshadowed ground based on ss.5(1)(h) and 5(3)(b) of the Judicial Review Act. The matters put to the Court are no more than assertions. The only evidentiary material before the Court is the copy of the document described as "the delegate's determination and reasons for making it" annexed to the affidavit of Mrs Le sworn on 4 November 1993. That document does not, on its face, contain any reference to the "Jeremiah" boat people or to their treatment on their return to the People's Republic of China let alone set out findings of fact by the decision-maker in relation to those matters. Thus, no foundation has been laid upon which a contention based on ss.5(1)(h) and 5(3)(b) might be erected.
The history of the matter is unsatisfactory and tends to support the conclusion that the applicant does not have an arguable case except in relation to Ground 1 which is the subject of the undetermined appeal before a Full Court of this Court. Nevertheless, I do not think it appropriate at this stage to order that the application be dismissed except as to that ground. I am prepared to allow the applicant one further opportunity, limited in time, to satisfy the Court that he has an arguable case in relation to other issues such that the case should be allowed to proceed to a hearing. I, therefore, make the orders and give the directions set out below.
The motion, notice of which was given on 20 January 1994 is adjourned to 14 April 1994. The costs of the motion are reserved. I direct that the applicant file and serve not later than 25 March 1994 notice of a motion returnable before the Court on 14 April 1994 for leave to file and serve an amended application under the Judicial Review Act. The notice of motion is to be accompanied by a draft of the proposed amended application setting out with particularity the grounds upon which the applicant seeks to rely and the affidavits upon which he will seek to rely in the event that leave is granted to file and serve the amended application. Each party is to have liberty to apply to the Court on 7 days' notice.
Other applications (25 in all) for orders of review under the Judicial Review Act which raise similar questions to those raised in the present case are pending in the Court. Those applications are identified in the schedule to this judgment. In each case a motion seeking an order pursuant to Order 10, r.7 of the Federal Court Rules is also pending. The most convenient course is to adjourn those proceedings pending the further consideration of the present case. Those applications and the motions therein are adjourned until 14 April 1994.
THE SCHEDULE
No. of proceeding Applicant
ACT G 50 of 1993 Jie Shi Fang
ACT G 51 of 1993 Chen Jian
ACT G 52 of 1993 Zhong Yi
ACT G 53 of 1993 Lin Chuan Fu
ACT G 54 of 1993 Mo Feng Zhen
ACT G 55 of 1993 Chen Zhu Chong
ACT G 56 of 1993 Huang Yun
ACT G 57 of 1993 Chen Jun Ming
ACT G 58 of 1993 Quan Jie
ACT G 59 of 1993 Huang Jun Hua
ACT G 60 of 1993 Quan Guo Yu
ACT G 61 of 1993 Cao Dai Ming
ACT G 62 of 1993 Song Wen Zhong
ACT G 63 of 1993 Shi Yong Ping
ACT G 64 of 1993 Lin Wei Xing
ACT G 65 of 1993 Sun Shao Gang
ACT G 66 of 1993 Guo Bing Xin
ACT G 67 of 1993 Liang Xing Hai
ACT G 68 of 1993 Chen Wei Rong
ACT G 69 of 1993 Fan Bowen
ACT G 70 of 1993 Tang Jie Xin
ACT G 71 of 1993 Liang Xiang
ACT G 72 of 1993 Liang Chao Gun
ACT G 73 of 1993 Fu Xue Bing
ACT G 74 of 1993 Shie Zhen Liang
0
3
0