NBGI v Minister for Immigration
[2005] FMCA 315
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBGI v MINISTER FOR IMMIGRATION | [2005] FMCA 315 |
| 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: | NBGI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1818 of 2004 |
| 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 S Burnett of Clayton Utz |
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 $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1818 of 2004
| NBGI |
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 the force of those orders. These final orders and the reasons for orders 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 New South Wales District Registry of the Federal Magistrates Court of Australia on 17 May 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 March 2004 and handed down on 20 April 2004 affirming a decision of the delegate of the respondent (“the delegate”) made on 24 October 2003 to refuse to grant the applicant a protection (Class XA) 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 “NBGI”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 9 September 2003. On 17 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 24 October 2003 the delegate refused to grant a protection visa and on 20 November 2003 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.
The applicant stated he was born in December 1978 in Gucheng Country, Hebei, People’s Republic of China. He is married and has one son. The applicant’s wife and son remain in China. In a brief typed one and a half page statement attached to his original visa application, the applicant claimed he was introduced to Falun Gong several years ago by friends and they explained the benefits of the practice to him. As the applicant believed his friends to be very trustworthy people, he started to learn and practice Falun Gong which he claimed improved his energy level, provided him with good spirits and a healthy body. The applicant claimed he was able to make many good friends when attending Falun Gong activities (Court Book p.31) (“CB”). After the Chinese Government declared the Falun Gong movement illegal, the applicant claimed these benefits were destroyed and the followers were forbidden to organise any activities associated with the practice of Falun Gong (CB p.32).
The applicant claimed that because his group was quite active in their city, most of the group members were severely persecuted. He claimed that some members were placed in detention centres, some were forced to attend “study classes”, some left their place of work and some were sent to prison (CB p.31). The applicant claimed he was one of the most miserable Falun Gong followers because he was sent into a detention where he was beaten and interrogated. The applicant claimed he was released from detention on the condition he signed a confession. He stated that during the past two years he had been living in constant fear of further action by the police (CB p.32).
Litigation history
A brief summary of the litigation history of this application is as follows:
a)On 17 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). The matter was given the Federal Court proceedings number of N802 of 2004.
b)
On 31 May 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 the Federal Court and any evidence upon which the applicant proposed to rely upon by
2 August 2004. Subject to the matter being transferred to the Federal Magistrates Court of Australia, the matter was listed for further directions on 25 January 2005.
c)On 2 June 2004 His Honour Jacobson J referred the matter to the Federal Magistrates Court of Australia and the matter was given a new file identification of SYG1818 of 2004.
d)On 25 January 2005 the matter was listed before Registrar Hedge 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
Ms S Burnett, Solicitor, appearing for the respondent in the substantive matter, made oral submissions in support of her application. It was submitted that the original application filed in the Federal Court consisted of the following ground:
“1.The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the visa. In making this finding, the RRT ignored parts of the applicant’s claims in the statement attached to her application for the relevant visa submitted. In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give rise to jurisdictional error.
2.The above jurisdictional error affected the exercise of power of the RRT.” (Errors in original)
That was the full extent of the claim being made in the application and was not supported by any particularisation or supporting affidavit.
On 31 May 2004, before the matter was referred to the Federal Magistrates Court, it was listed before a Registrar for directions, where orders were made for the applicant to file an amended application giving complete particulars of review being relied upon by the applicant and any evidence upon which the applicant proposed to rely by 2 August 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 did not make any submissions when invited to respond to the motion before the Court other than to repeat his claim that he was a Falun Gong practitioner and that he was a genuine refugee.
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). He was allocated Counsel to give him advice but did not make contact to arrange a convenient time for conference. The adviser forwarded his written advice to the applicant by registered mail. It was noted that the applicant was invited to attend the Tribunal hearing on 14 March 2004. The applicant responded by forwarding the “Response to Hearing Invitation” which indicated that he did not wish to attend and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow the applicant to appear before it. Also contained within the Tribunal’s letter was an invitation to the applicant to forward any further written material in the form of new documents or written argument in support of his application. Nothing was received from the applicant.
In the Tribunal’s decision under the heading “Findings and Reasons”, the Tribunal effectively summarised its findings as follows:
“The Tribunal has found the applicant’s claims to be vague and lacking in specific details. The applicant has not specified any details relating to the occasion when he claims to have been detained. The applicant has not provided details relating to his alleged practice of Falun Gong, in particular, when and how he practised. He has not attended a hearing which would have given the Tribunal an opportunity to explore the applicant’s claims. Further, he has not provided any supportive documentation.” (CB p.67).
The applicant indicated to me that he wished to pursue his application before the Court, although to date the applicant had done little to demonstrate his desire to prosecute his claim. The applicant had attended Court when scheduled to do so and insisted that he wished to keep the proceedings on foot. Consequently, I made orders to provide the applicant with a further opportunity to continue with his application and advised him of the importance of complying with the timetable being set down and the requirements of the Court to have the pleadings supported by evidence before the application could proceed. The following orders were made:
“1.The applicant file and serve an amended application by
28 February 2005 giving complete particulars of each ground of review relied upon.
2.The respondent has leave to file and serve any further submissions by 7 March 2005.
3.If the applicant fails to comply with Order 1 then the application will be automatically dismissed by His Honour in Chambers.”
On 8 February 2005 the applicant filed an amended application purporting to comply with Order 1 above. This document was not submitted in the proper Court form and did not give proper particulars of the grounds of review. The amended application merely cavilled with the evidentiary finding of the Tribunal and as such was seeking an impermissible merits review. The applicant’s individual grounds were not identified nor any particularisation supplied. The six typed paragraphs of the amended application re-stated the applicant’s claim and concluded that the Tribunal failed to look at the facts of the case both subjectively and objectively and failed to consider the applicant’s specific circumstances.
Based on the material contained in the Court Book, the original application and the amended application, there was nothing to indicate that the applicant could succeed at a final hearing if he were permitted to proceed further. 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 sixteen (16) 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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