Nbef v Minister for Immigration
[2005] FMCA 317
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBEF v MINISTER FOR IMMIGRATION | [2005] FMCA 317 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – non compliance with orders of the Court – application dismissed. |
Migration Act 1958 (Cth), s.91X
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
| Applicant: | NBEF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1710 of 2004 |
| Delivered on: | 22 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 25 January 2005 |
| Orders made: | 22 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr A Carter of Sparke Helmore |
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 25 January 2005.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1710 of 2004
| NBEF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings were referred to this Court from a directions hearing before a Court Registrar on 25 January 2005. The Solicitors for the respondent moved the Court for orders that these proceedings be dismissed pursuant to Part 13, Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court. After a brief hearing of submissions from both parties, further interim orders were made setting out a revised timetable. The applicant was informed that if the orders were not complied with then the substantive application would be dismissed by force of those orders. These final orders and the reasons for judgment were subsequently made in Chambers.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 3 May 2004 for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 March 2004 and handed down on 8 April 2004 affirming a decision of the delegate of the respondent (“the delegate”) made on 2 December 2003 to refuse to grant the applicant a protection visa.
Applicant’s 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 “NBEF”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 8 September 2003. On 30 September 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 2 December 2003 the delegate refused to grant a protection visa and on 17 December 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
In a brief typed statement attached to his initial visa application (Court Book pp.28-29) (“CB”), the applicant claims he was born in October 1956 in Hubei in the People’s Republic of China. He claimed to have been brought up as a Christian and he and his family acted as missionaries in his home town and approximately 200 people converted to Christianity. The applicant stated he was involved in buying bibles and building a church. In 1999 the Chinese Government began to control religious activities and authorities took over the church and changed it into a place for elderly people and ‘kept an eye’ on the local Christians. The applicant claimed that if church members were found to have been doing anything of a religious nature they were urged to explain or even taken to the police station. The applicant claimed he was taken to the police station twice where he refused to promise not to hold his meetings. He said he was lucky to “escape” as the Government was still persecuting many Christians in his town. The applicant said he was involved in missionary activities in Australia and would provide further evidence of his activities. However, no further information was submitted to the Tribunal.
Litigation history
A brief summary of the litigation history of this application is as follows:
a)On 3 May 2004 the applicant filed in the Federal Court of Australia New South Wales District Registry an application for review under s.39B of the Judiciary Act 1903 (Cth).
b)On 28 May 2004 His Honour Whitlam J referred the matter to the Federal Magistrates Court of Australia.
c)On 11 June 2004 the matter was listed for directions before a Registrar. On that date consent orders were made requiring the applicant to file an amended application giving complete particulars of each ground of review being relied upon by the applicant in the application before this Court and any evidence upon which the applicant proposed to rely upon by 10 September 2004. The matter was again listed for 25 January 2005 at which time the parties would be advised of a final hearing date.
d)On 25 January 2005 the matter was listed before a Court Registrar for directions at which time the respondent’s solicitor requested the matter be referred to a Federal Magistrate in order to make an application to the Court regarding the future carriage of the matter.
Respondent’s application
Mr A Carter, Solicitor, appearing for the respondent in the substantive matter, made oral submissions in support of his application. It was submitted that the original application filed in the Federal Court consisted of the following grounds:
“1.The decision handed down by the Refugee Review Tribunal is incorrect. It contains errors of law and irrational findings.
2.The decision should be quashed by the Federal Court of Australia.
3.The Refugee Review Tribunal should consider the application.
4.The re-consideration should be performed by a member differently constituted.
5.The applicant should be given another chance for a hearing at which his claims can be fully examined and dealt with by the Refugee Review Tribunal.”
That was the full extent of the claims being made in the application and was not supported by any particularisation or supporting affidavit.
After the matter was referred to the Federal Magistrates Court by His Honour Whitlam J and listed before a Registrar for directions, orders were made for the applicant to file an amended application giving complete particulars of each ground of review being relied upon by the applicant and any evidence upon which the applicant proposed to rely by 10 September 2004. This order was not complied with prior to the matter coming before the Registrar in a further directions list on
25 January 2005 at which time the final hearing date was to be allocated.
The respondent moved that the applicant had failed to disclose the grounds for review and had failed to comply with the Court orders to file an amended application. The respondent sought for the matter to be dismissed for these reasons.
Applicant’s submissions
The applicant indicated that he had been unable to address the Tribunal on a face to face basis and provide the Tribunal with details in support of his application. It was the applicant’s contention that he had not been invited to attend the Tribunal hearing. When the applicant was shown the Tribunal’s invitation to hearing letter which was forwarded to both the applicant and his migration agent, he advised the Court that he was unaware of the existence of the letter. The applicant was also shown the letter from his migration agent, Mr Jack Ming, detailing his efforts to contact the applicant in order to advise him of the hearing date. However, the applicant declined to make any comment.
Reasons
The applicant had indicated during the original directions hearing before the Registrar that he wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and that he had been allocated Counsel to give him that advice. However, due to changes of address the advice lawyer had been unable to contact the applicant to arrange a conference. The applicant indicated to the Court that he still wished to participate in the Advice Scheme and to prosecute his case.
Orders were made in Court on 25 January 2005 to enable the applicant to pursue his application in light of the enthusiasm which he expressed to the Court that it was his desire to do so, although to date there had been little demonstration that this was his intention. The applicant had changed address on more than one occasion and this was not recorded on the Court file. The applicant was unable to give any clear explanation as to why he had not advised the Registry of his change of address although he had been instructed and had agreed to do so at the original directions hearing should this event occur. He indicated he wished to continue participating in the Advice Scheme but he had not been notified by the Court of his adviser. Arrangements were made for the allocated adviser to be notified of the applicant’s new contact arrangements. Because of the misunderstandings that had arisen regarding the applicant’s change of address I made orders to provide the applicant with a further opportunity to continue with his application. I also advised the applicant of the importance of complying with the timetable being set down and the requirement of the Court that be pleadings supported by evidence before an application can proceed. The following orders were made:
“1.The applicant file and serve an amended application no later than 4.00 p.m. on 25 February 2005 giving particulars of each ground of review relied upon.
2.The applicant is to file and serve any affidavit in support of his application no later than 4.00 p.m. on 25 February 2005.
3.The applicant file and serve written submissions in support of his application no later than 4.00 p.m. 14 days before the hearing date.
4.If the applicant fails to comply with Order 1 above, the application is dismissed by force of these orders with costs fixed in the sum of $1,500.00.”
On 2 February 2005 the applicant filed in the Registry an undated document titled “Amended Application”. This document was not submitted in the standard Court format and did not give proper particulars of the grounds of review. The original application alleged that the Tribunal’s decision was incorrect as it contained “errors of law and irrational findings”. The amended application did not address or particularise those grounds. At paragraph 2 it stated that the officer made jurisdictional mistakes, did not consider all the material available and was biased. There were no particulars of these grounds in the document and no supporting affidavit or transcript of the Tribunal’s hearing was provided in compliance with Order 2 of the Short Minutes of Order. The respondent submitted at the hearing on 25 January 2005 and again by letter to the Court dated 28 February 2005 that the applicant did not disclose an arguable ground for review.
While the applicant was before the Court some time was spent setting out what was required in order to progress his substantive application before this Court. Arrangements were also made for the applicant to be put into contact with the Pilot RRT Legal Advice Scheme (NSW) adviser to obtain any additional advice that he may require in order to comply with the new orders for which a strict timetable had been set. It was explained to the applicant that he was in breach of the orders of the Court for failing to comply with the original orders made by the Court Registrar on 11 June 2004. However, some doubt arose as to whether the applicant fully understood the obligations that were explained to him with the aid of an interpreter during the original directions hearing and he was given a further opportunity to comply with the orders of the Court.
Conclusion
Based on the material contained in the Court Book, the original application and the amended application, there is nothing to indicate that the applicant could succeed at a final hearing if he was permitted to retain the scheduled hearing date in 2006. Consequently, as the applicant has not disclosed any arguable ground of review, I believe that the substantive application 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 March 2005
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