NALE v Minister for Immigration
[2003] FMCA 366
•22 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NALE v MINISTER FOR IMMIGRATION | [2003] FMCA 366 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application claiming persecution because of ethnicity in Thailand – no reviewable error. PRACTICE AND PROCEDURE – Summary dismissal of review application – non compliance with court orders – no reasonable cause of action and abuse of process – reasonable inference that the Court’s process is being used purely for the purpose of delaying the applicant’s departure from Australia. |
| Applicant: | NALE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ672 of 2003 |
| Delivered on: | 22 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 22 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
No appearance by the applicant
| Solicitors for the Respondent: | Mr R White Sparke Helmore |
ORDERS
The application is dismissed pursuant to rules 13.03(2)(b), 13.10(a) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ672 of 2003
| NALE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me for ex tempore judgment, a notice of motion filed on 1 August 2003, on behalf of the respondent Minister in this matter. The motion seeks the dismissal of the principal application for relief pursuant to part 13, rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), on the basis that the applicant has failed to comply with orders of the Federal Court made by consent on 3 April 2003, and further seeks the dismissal of the principal application for relief pursuant part 13, rule 13.10(a) of the Federal Magistrates Court Rules on the basis that the application fails to disclose a reasonable cause of action.
The Minister proceeds upon the notice of motion and two affidavits made by Althea Jane Houlton on 4 August 2003 and 19 August 2003 in which Ms Houlton deposes as to the relevant facts and circumstances. Mr White, for the Minister, has also prepared written submissions which he relied upon this morning. The matter was called twice and the applicant failed to appear. I adjourned briefly so that an attempt could be made to contact the applicant by telephone, but that attempt was not successful.
The principal application for relief is an application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (“the Migration Act”), to review a decision of the Refugee Review Tribunal (“the RRT”) made on 21 January 2003, and handed down on 18 February 2003. The RRT affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa. The applicant is a citizen of Thailand and applied for a protection visa on the basis of asserted discrimination in Thailand as a member of the ethnic Chinese minority. The application asserted that the discrimination she has suffered in Thailand amounted to persecution. I note that in the RRT decision record (court book, page 47) the presiding member states that:
On 24 December 2002 the applicant advised the RRT in writing that she did not wish to give oral evidence and consented to the RRT proceeding to make a decision on the review without taking any further action to allow, or enable, her to appear before it. The matter was therefore determined on the evidence available to the RRT.
The RRT found that there probably had been some low level discrimination of the applicant in the course of her employment, because of her ethnicity, but found that the claims were generalised and vague and did not amount to persecution. The RRT found that there was not a real chance that the applicant would experience serious harm amounting to persecution for a convention reason if she returned to Thailand then, or in the foreseeable future.
The principal application for relief, which was filed in the Federal Court on 12 March 2003 sought, first, that the application for a protection visa be re-assessed; secondly, the application asserts actual bias without giving particulars; and, thirdly, it asserts that there was no evidence or other materials to justify the making of the decision. It is apparent on the face of that application, informed by a reading of the court book, that there is no substance to the application. Plainly, neither the Federal Court nor this Court can review the merits of the RRT decision.
Secondly, in the absence of any particulars, and on the face of the record in the court book, there is no substance to a claim of actual bias. Thirdly, there clearly was evidence or other materials to justify the making of the RRT decision. That evidence was the material presented by the applicant herself to the RRT. As the presiding member noted in his reasons for decision, the RRT would have been assisted if the applicant had chosen to appear and answer questions before the RRT but she did not do so. On the material that the applicant herself presented, the RRT was simply unable to conclude that she was a refugee.
The application for review filed in the Federal Court was transferred to this Court by order of Her Honour Branson J. Prior to that transfer consent orders were made on 3 April 2003 which required the applicant to file and serve an amended application and any evidence upon which he proposes to rely on or before 1 May 2003. The matter was listed for a hearing before me on 1 October 2003. That hearing date was subsequently put back to a date in January 2004. It is clear that an amended application was required if the applicant was to put substance into her application.
However, the applicant did not file any amended application as required by the consent order. In addition, the applicant declined an opportunity to participate in the Minister's pilot advice scheme available to applicants in proceedings to review protection visa decisions. Rule 13.03 permits me to end a proceeding where a party fails to take a step required by the rules or to comply with an order of the Court. The power is available to me at the Court's own motion or on the motion of another party. It is also open to me to require that the step which the defaulting party has failed to take be taken within a stated time.
In this matter, the relevant order was made by the Federal Court rather than this Court, but I have previously held that the power conferred by rule 13.03 is available to enforce orders made by the Federal Court prior to a transfer of proceedings to this Court. If the only issue were the default in compliance with the consent order for the filing of an amended application, I would be minded to exercise my power to require that the amended application be filed within a stated time, rather than to dismiss the principal application.
However, that is not the only issue before me. The second issue is that the Minister asserts that the principal application must necessarily fail and that I should dismiss the application as disclosing no reasonable cause of action pursuant to rule 13.10(a). Having regard to the affidavits upon which the Minister relies and having regard to the court book and the principal application itself, it is clear to me that the application, as framed, is utterly hopeless.
I dealt with this issue in the matter of Kosi v Minister of Immigration [2003] FMCA 340. If this application were to proceed to a hearing, it would necessarily fail. I am satisfied, in the circumstances, that it would be appropriate to dismiss the application pursuant to rule 13.10(a).
There is a third matter which, although not raised by the Minister, is, in these proceedings, another issue which I should consider. In Kosi, at paragraph 18, I said this:
In other circumstances a question may well arise whether an application which is utterly hopeless is frivolous or vexatious or is otherwise an abuse of the Court's process. It would be an abuse of the Court's process to file an application for review simply for the purpose of extending the period of one's stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances, there is potential for the Court's process to be abused by an applicant whose only purpose is to take advantage of that delay.
In this matter, in my view, I can draw inferences to come to a view that the applicant's real purpose in these proceedings is to take advantage of delay. In the first place, the protection visa application was a weak one. It was not actively pursued by the applicant beyond making rather vague written submissions. The applicant elected not to attend a hearing before the RRT.
In the second place, the application for review filed in the Federal Court and transferred to this Court, is, on its face, utterly without merit. It would necessarily fail. In the third place, the applicant has failed to comply with an order in the Federal Court that she file an amended application. Fourthly, the applicant has declined an invitation to participate in the Minister's pilot advice scheme. Lastly, she has failed to attend at the hearing of the Minister's motion today.
All of these factors combined lead me to the view that the applicant is simply seeking to take advantage of the delay in hearing migration review applications in this Court. In this matter that delay has been extended due to the fact that the original hearing date has been vacated and the matter re-listed for hearing in January. I conclude that the application should be dismissed for these reasons: for default of compliance with the order of the Federal Court requiring the filing of an amended application; because the principal application discloses no reasonable cause of action; and in addition because the proceeding is an abuse of the process of the Court.
In the matter of Kosi v Minister for Immigration, I declined to make a costs order on the basis that the Minister's application for summary dismissal was brought in the public interest. There is also a public interest element in the Minister's motion before the court today, but there are countervailing factors which lead me to the view that a costs order should be made. In Kosi the applicant was in immigration detention. I formed the view that the applicant was genuinely seeking to agitate a proceeding in the Court that might have seen her release from immigration detention if successful.
In this matter, the applicant is not in immigration detention, she is in default of compliance with an order of the court, she has failed to attend the proceedings today and I have found that her application is an abuse of process. In those circumstances, it is highly appropriate that a costs order should be made.
Mr White has submitted that it would be appropriate in this matter to fix costs in the sum of $3,500, bearing in mind that preparatory work has been done for the purposes of a hearing in this matter. The court book has been prepared, however, counsel has not yet been retained for a final hearing and written submissions have not been prepared for a final hearing. Written submissions have been prepared to support the minister's motion. In my view, an amount of $3,000 would be appropriate recompense to the Minister in this matter. I will order that the application be dismissed pursuant to orders 13.03(2)(b), 13.10(a) and 13.10(c) of the Federal Magistrates Court Rules and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 September 2003
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