NBDC v Minister for Immigration
[2005] FMCA 432
•5 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBDC v MINISTER FOR IMMIGRATION | [2005] FMCA 432 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b), 13.03A(d)
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | NBDC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1471 of 2004 |
| Hearing date: | 5 April 2005 |
| Delivered at: | Sydney |
| Orders made: | 5 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Ms M Asimus of Blake Dawson Waldron |
ORDERS
The application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 18 January 2005.
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 |
SYG1471 of 2004
| NBDC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the respondent in a non compliance list seeking the matter be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) for failing to comply with the orders of the Court dated 18 January 2005. The applicant was a self represented litigant but failed to appear before the Court. The respondent Solicitor made oral submissions in support of the Motion requesting that the hearing proceed generally in the absence of the applicant pursuant to Rule 13.03A(d) of the Rules. A Court Book had been prepared, filed and served and the respondent Solicitor filed an affidavit and made oral submissions in support of the Motion. I believe it was in both parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated that I would publish my reasons for those orders.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Court of Australia on 25 March 2004. On 6 May 2004 His Honour Moore J made orders transferring the matter to the Federal Magistrates Court.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “NBDC”.
The applicant was born in Shenyang in the People’s Republic of China in 1982 and is a student. He studied from 1999 to April 2003 at the Shenyang Polytechnic Institute but did not finish his degree. He obtained a Temporary Business visa for Australia on 2 May 2003 and departed China on 21 May 2003 travelling on a Chinese passport issued on 19 February 2003 which was valid for five years.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 22 May 2003 and departed on 18 June 2003. The applicant again entered Australia on 24 June 2003. He had no difficulty obtaining exit documents and left China legally on two occasions (Court Book p.71) (“CB”).
The applicant claimed he became involved with the practice of Falun Gong through his brother and at his school he formed a small group who practised in the playground twice daily. He claimed he experienced no problems with that activity for several years. The applicant began University in 1999 which was the same year the Chinese Government announced Falun Gong as an illegal religious organisation. The applicant was warned not to practise Falun Gong however he continued to do exercises at home in secret. The applicant stated that Falun Gong was a basic human right and he should propagate its doctrine. He claimed he was reported by his class mates to the leaders of his educational institution and they dismissed him but did not report him to the police because of his good record. The applicant claimed he tried to find employment without success because he did not have a degree and was therefore labelled a badly behaved student. He claimed the Chinese government deprived him of his basic human rights of practising Falun Gong and working. The applicant claimed he feared persecution if he returned to China for reason of his membership of the particular social group of Falun Gong members (CB p.28).
Chronology
A brief chronology of this matter is as follows:
a)The applicant arrived in Australia on 22 May 2003 and departed on 18 June 2003. The applicant returned to Australia on 24 June 2003.
b)The applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) on 1 July 2003.
c)On 10 September 2003 the delegate refused to grant the applicant a protection (Class XA) visa.
d)On 9 October 2003 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.
e)On 4 February 2004 the Tribunal, constituted by Mr Peter Gacs made a decision to affirm the delegate’s decision not to grant the applicant a protection visa.
f)On 25 February 2004 the Tribunal’s decision was handed down.
g)On 25 March 2005 the applicant filed an application for a review of the Tribunal’s decision in the Federal Court of Australia under s.39B of the Judiciary Act 1903 (Cth). The matter was given the Federal Court Proceeding No. N415/2004.
h)On 6 May 2004 His Honour Moore J transferred the matter to the Federal Magistrates Court of Australia. The matter was given the Federal Magistrates Court Proceeding No. SYG1471 of 2004.
i)On 18 January 2005 the matter was listed for directions before Registrar McIllhatton.
j)On that date, by consent, orders were made requiring the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application by 8 February 2005.
k)The final hearing date of 31 January 2006 was allocated to the matter.
Respondent’s application
Ms M Asimus, Solicitor, appearing for the respondent in the substantive matter tendered and applied for an affidavit of Melissa Inga Gwendolyn Asimus sworn on 4 April 2005 (“the affidavit of Ms Asimus”) to be admitted into evidence. The Court Book prepared by the respondent Solicitor was filed and served on 3 June 2004. The submission by the respondent’s Solicitor was that the directions made by Registrar McIllhatton on 18 January 2005, requiring the applicant to file an amended application by 8 February 2005, had not been complied with. The original application to the Federal Court did not contain any grounds of review and no supporting affidavit was filed at that time.
An amended application was filed on 14 May 2004 in the Federal Court action but this document did not disclose any grounds of review. In response to the orders made by Registrar McIllhatton the applicant filed a statement in Mandarin with an English translation attached. The person who authored the statement was not identified and the document was in the form of a statement made by a third party who identified the applicant and provided a brief summary of the applicant’s involvement with the Falun Gong association in China, his problems with the Chinese police and the problems he would experience if he was required to return to China. The document was typed but subsequent to its preparation, the words “Amended Application” were added to both the top and bottom of the document. The document did not identify any grounds for review and did not meet the description of an amended application in any respect.
Attached to the affidavit of Ms Asimus were copies of correspondence addressed to the applicant dealing with the issue of the filing of an amended application. The most recent of the correspondence was dated 24 February 2005 which noted the non compliance with the orders issued by Registrar McIllhatton and indicated that the matter would be listed for a non compliance hearing on Tuesday, 5 April 2005 at 11.30 a.m. The details of the location of the Court and a map were also provided to the applicant with the letter. The affidavit noted that the letter and the previous correspondence forwarded to the applicant were not returned as unclaimed to the respondent’s Solicitor.
Despite Court orders issued in these proceedings, both in the Federal Court and in the Federal Magistrates Court of Australia, no Court documents were filed by or on behalf of the applicant that identified any grounds of jurisdictional error committed by the Tribunal in its decision making process. As the applicant was a self represented litigant, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
Under the heading “Claims and Evidence”, the Tribunal’s decision indicated that the applicant was invited to attend a hearing to give oral evidence which he indicated he intended to do. However, the applicant failed to appear at the hearing and did not contact the Tribunal to explain his failure to attend. In the Tribunal’s hearing invitation letter it was indicated that the Tribunal had considered the material before it, being the information supplied with the applicant’s original application by his migration agent, but it was unable to make a decision in the applicant’s favour based on that information alone and for that reason the applicant was invited to attend a Tribunal hearing to give oral evidence and present any arguments in support of his claim.
The Tribunal noted that the applicant’s claim was general in nature and the main emphasis was his membership and advocacy for the Falun Gong movement. However, the Tribunal noted a number of issues in respect of the applicant’s claim and in the absence of any supporting documentation or oral evidence the Tribunal could not accept the broad allegations as submitted by the applicant. On the face of the decision it was not apparent that the Tribunal had made a jurisdictional error in its decision making process. The Tribunal had worked from the limited amount of material available to it which was not supplemented or augmented in any way by the applicant since his original application.
In the absence of any pleadings and on a fair reading of the Tribunal’s decision, no jurisdictional error was apparent. Despite the opportunity provided to the applicant to file an amended application providing grounds and supporting evidence, these orders were not complied with. The applicant has been provided with the assistance of legal advice through the Pilot RRT Legal Advice Scheme (NSW) and received written advice from the legal adviser allocated to him under the Scheme. On the occasions that the applicant has been obliged to attend the Court or the Tribunal he has failed to do so and provided no explanation for these absences.
Attempts to contact the applicant on the day of the hearing to determine his intention to attend the hearing were unsuccessful as the mobile telephone number provided to the Court as his contact number was unanswered.
Conclusion
From the material placed before me, I believe the applicant has been provided with every opportunity to comply with the Court orders but he has failed to do so. In the circumstances, I believe that the application filed on 25 March 2004 and transferred to the Federal Magistrates Court of Australia on 6 May 2004 should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 18 April 2005
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