NBGJ v Minister for Immigration
[2005] FMCA 680
•26 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBGJ v MINISTER FOR IMMIGRATION | [2005] FMCA 680 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – non compliance with orders of the Court – application dismissed. |
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth) s.91X
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Jia Cai Zheng & Anor v Minister for Immigration & Multicultural Affairs [1997] 92
3 FCA
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4
| Applicant: | NBGJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1817 of 2004 |
| Delivered at: | Sydney |
| Hearing date: | 25 January 2005 |
| Orders made: | 26 May 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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1817of 2004
| NBGJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
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 in accordance with the revised timetable 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 Court of Australia on 17 May 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 April 2004 and handed down on 29 April 2004 affirming a decision of the delegate of the respondent (“the delegate”) made on
4 December 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 “NBGJ”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 22 November 2003. On 3 December 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-33) (“CB”). On
4 December 2003 the delegate refused to grant a protection visa (CB pp.34-43) and on 10 January 2004 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision (CB pp.44-47).
The applicant stated he was born in January 1972 in Gaocheng City, Hebei, the People’s Republic of China. He claimed he is married and his wife and two children remain in China. The applicant provided a brief typed one page statement with his original visa application that stated as follows:
“My name is [applicant]. I am a citizen of the People’s Republic of China. I was persecuted unfairly in China as a result of my breach of China’s One-child Policy.
I got married when I was 19, while the qualifying age for legal marriage was set at 22 in China. Our first child came to this world in the next year after my marriage. We were fined RMB 2,000 when applying for registration of his household. We were also warned and then our application for registration was approved. The following year, my wife was pregnant again. She was located by the Birth Control Office when she was four-month pregnant. Birth-Control officer broke into our home and took my wife away to conduct a forced-abortion. On the way my wife escaped with an excuse of going to the lady’s. She then hided herself up in her brother’s home. The child was born with assistance from a private midwife. Our second child still hasn’t get his household registered yet, and I was forced to undertake a ligature, which hurt me physically and spiritually.
I dare not return to China, so I hereby apply for protection from the Australian government. I would appreciate if my application could be approved.” (CB p.27)
The delegate in his decision of 4 December 2003 made the following findings in relation to its consideration of what was the relevant Convention ground, and whether the persecution was “for the reason of” that ground:
4.1In assessing the applicant’s claims to be at risk of persecution in the PRC, I am alert to the fact that the circumstances described by the applicant have not arisen because of his race, religion, nationality, political opinion, or because of his membership of a particular social group. His circumstances have arisen as a result of his decision to have more than one child in contravention of China’s One Child Policy, a law of general application in that country. He does not claim, nor is there any reason to believe, that he has been singled out for any mistreatment for a Convention reason.
4.2The applicant therefore makes no claims that are related to the Convention, and he has presented no evidence that prompts further enquiry as to whether or not his circumstances may be Convention related. (CB p.42)
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 N804 of 2004. For the purpose of this judgment, the information in the application under the heading “Details of Claim” will be referred to as the “original grounds”.
b)On 31 May 2004 the matter was listed for a directions hearing before Registrar Segal. 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. For the purpose of this judgment, that document will be referred to as the “first amended application”. The orders of that date were subject to the matter being transferred to the Federal Magistrates Court of Australia and, if that occurred, the matter was to be 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 SYG1817 of 2004.
d)On 21 October 2004 the applicant filed a document identified as “Amended Application” in the Federal Court under the Federal Court number N804 of 2004. The filing of this document was without explanation because the applicant had already filed an amended application which I have identified as the “first amended application” referred to in paragraph 6(b) above. The document was prepared for the Federal Court with the Federal Court number and was filed after the matter had been transferred from the Federal Court to the Federal Magistrates Court on 2 June 2004. For the purpose of this judgment and for the purpose of identification, I will refer to this document as the “second amended application”.
e)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.
f)On the same day the matter was brought before me and an application was made by the respondent’s solicitor seeking an order that the application be dismissed for failure to comply with the orders of the Court made on 31 May 2004, that the applicant file and serve an amended application by 2 August 2004. After a brief hearing when submissions were made by both parties, new orders were made requiring the applicant to file and serve an amended application giving complete particulars for each ground of review to be relied upon by 28 February 2005. For the purpose of this judgment, that document is referred to as the “third amended application”.
Directions hearing
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 applicant had failed to comply with the orders of the Court made on 31 May 2004 that the applicant file and serve an amended application by 2 August 2004. The applicant had filed an amended application which was dated 21 October 2004 (referred to as the second amended application). The respondent’s solicitors received the document on 21 October 2004 but submitted that the document did not comply with the orders of the Court because it did no more than recite facts which were put to the Tribunal. It was submitted that the second amended application contained no grounds for review nor did it contain any particularisation.
The applicant in the substantive proceedings on 25 January 2005 indicated that he had not seen the allocated legal adviser, provided under the Pilot RRT Legal Advice Scheme (NSW) because of his difficulty with language and his uncertainty as to how he would communicate with the adviser. The applicant indicated his willingness to comply with any orders made by the Court in relation to the further carriage of the matter. It was also noted that to date the applicant had attended all Court directions and had attempted to comply with orders made. Consequently, I made new orders in the following form to provide the applicant with a further opportunity to comply with the requirements of the Court:
1.The applicant is to file and serve an amended application [the third amended application] giving complete particulars of each ground of review to be relied upon by 28 February 2005.
2.The respondent be granted leave to file and serve any further submissions by 7 March 2005.
3.If the applicant does not comply with Order 1, then the matter will be dealt with by Federal Magistrate Lloyd-Jones in chambers for summary dismissal.
4.Either party is at liberty to apply to the Court for further directions.
The applicant was advised to make contact with the allocated adviser under the Pilot RRT Legal Advice Scheme (NSW) in accordance with the letter issued by the Federal Court Registry dated 16 July 2004. The applicant was also advised that if he experienced difficulty in contacting the adviser he should contact the Registry.
Reasons
The respondent’s solicitors, by letter dated 5 April 2005, indicated that they had received a copy of the applicant’s amended application [third amended application] dated 2 February 2005 which purported to comply with Order 1 made on 25 January 2005. The respondent submitted that, upon review of the amended application, the applicant merely cavilled with the evidentiary finding of the Tribunal and was, as such, seeking impermissible merits review. It was also submitted that the applicant had not fully particularised each ground of review to be relied upon. In the circumstances, the respondent sought an order pursuant to the terms of Order 3, made on 25 January 2005 that the application be dismissed in chambers. The respondents indicated that a copy of its letter of 5 April 2005 was forwarded to the applicant on the same date. At the time of this decision an examination of the file revealed that there had been no response by the applicant to the respondent’s letter.
As indicated in the litigation history, set out above, I now have before me the original grounds and three separate amended applications. The respondent submitted that as none of these documents identified a jurisdictional error and therefore did not comply with the orders of the Court made on the various dates set out above, the application should be dismissed accordingly.
The original grounds were stated as follows:
1.The Refugee Review Tribunal has failed to provide an opportunity to the applicant for a hearing at which time the applicant can explain fully his claims for the protection visa and can clarify some issues raised by the Department of Immigration, Multicultural and Indigenous Affairs.
2.In so doing, the Tribunal failed to give the applicant a procedural fairness and acted in breach of Section 426A of the Migration Act 1958. The Tribunal therefore made a jurisdictional error in regard to the applicant’s application for review.
On 11 March 2004 the Tribunal wrote to the applicant (CB pp.50-51) indicating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claim. This invitation was also extended to other persons who could give evidence in support of the applicant. The hearing was scheduled for 5 April 2004. The applicant was advised that if he was unable to attend the hearing that it would be necessary for him to contact the Tribunal to seek a postponement because, if he failed to do so, the Tribunal was permitted to proceed to make a decision without further notice. That letter was sent to both a post office box and a residential address that were nominated by the applicant. The Tribunal recorded in its decision that the applicant did not respond to the hearing invitation and failed to attend the hearing on the scheduled date (CB p.62). In the absence of the applicant, the Tribunal proceeded to make its decision. However, the decision was not handed down for a further twenty four days during which time there was no record of the applicant contacting the Tribunal to indicate the reasons for his inability to attend the Tribunal hearing. This ground cannot be sustained.
The second amended application dated 11 July 2004, which was prepared for the Federal Court and received in the Federal Court Registry on 21 October 2004, contained the following statement:
“I need to file an amended application as requested by the federal court. I will be self-represented.
I came to Australia to seek protection. I was persecuted in China. I applied for a protection visa with DIMIA but a delegate from DIMIA refused to grant a protection visa to me. I applied for review. The decision by DIMIA was still in force according to RRT.
I am a citizen of the People’s Republic of China. Because of the unfair treatment in China, I was persecuted there. I got married at 19, which was not a legitimate age to get married in China. The legitimate age is 22. The second year of my marriage we gave birth to our first child. We were fined RMB 2,000 when we went to register our child. My wife gave birth again but they forced us to do abortion. We escaped their control. My wife gave birth to the second child in a private hospital. Until now, our second child has not been registered yet. I was forced to do a birth control operation. I felt extremely aggrieved. So I fled China and came to Australia. I need the Australian government to protect me.
The RRT should take all my factors and situations into consideration. I was persecuted in China. My basic human rights were vandalized there. The Australian government should protect me.
The RRT should give me one more chance to obtain freedom in Australia. My case should be reopened.”
This second amended application was filed after the matter had been transferred to the Federal Magistrates Court on 2 June 2005. It was not apparent why this document was filed as the applicant had already filed another amended application [the first amended application] in the Federal Magistrates Court on 30 August 2004.
The first amended application dated 29 August 2004 and filed in the Federal Magistrates Court on 30 August 2004 contained the following ground:
1.The respondent made a jurisdictional error in that the respondent did not apply itself to the question whether the applicant has a well-founded fear of persecution for a Convention reason.
Particulars
Failure in regard to reason for the persecution feared – particular social group:
i)The applicant clearly claimed that he had two children and that as a consequence he had suffered harm that amount to persecution and feared harm that amount to persecution.
ii)Relevantly, the question of the respondent was whether the applicant had a well-founded fear of persecution for reason of his membership of a particular social group, this group being characterised by having more than one child.
iii)The respondent said that China’s family planning regulations ‘are laws of general application’ and therefore the applicant’s ‘case does not come within the Convention’.
Failure in regard to whether the harm already suffered was persecution in accordance with section 91R.
iv)The respondent did not address the issue of whether the harm claimed to have already been suffered by the applicant including the forced ligature and non-registration of the applicant’s second child was persecution.
Failure in regard to whether any harm feared was persecution and whether this fear was well-founded.
v)The respondent did not address the issue of whether any future harm feared (in light of the harm already suffered by the applicant) was persecution and whether the fear was well-founded.
vi)In summary, the respondent failed to address the question the law prescribes and accordingly there was a constructive failure to exercise jurisdiction.”
The third amended application filed in the Federal Magistrates Court on 2 February 2005 contained the following statement:
“I lodged my application for a protection visa to DIMIA, the officer refused my application because he found that any harm I might fear on my return related a breach of a law of general application and were not related to a fear of persecution for any of the reasons contained in the Convention, DIMIA officer refused my application also because I did not put my children’s details at my initial application, the other reason my application was refused was because I had no problem in obtaining my passport to leave China in 2001 and in 2003. I believe that the officer made jurisdiction mistakes because she misunderstood my claims, people who suffered from the one-child policy are a special group of people, it was not only a breach of a law of general application, it was also related to a fear of persecution for convention reasons because we were a special group of people who suffered from the persecution from the Chinese authorities because of the one-child policy. Secondly, my claims are all about one-child policy and how I suffered from the one-child policy. It was so obvious that mentioning no children was a mistake with the application, the officer used this information as part of the reasons to refuse my application.”
The three amended applications filed by the applicant appeared to have been prepared on his behalf by different authors or advisers. However, all three documents suffered from the same defect that in different ways they restated the applicant’s case but did not identify jurisdictional error. Clearly the applicant disagrees with the Tribunal’s decision and was seeking to re-agitate a review of his circumstances which he believed qualified him as a refugee for Convention purposes.
As 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. There was only one question before the Court. That was, whether the decision of the Tribunal involved an error of law, namely that, notwithstanding the applicant had a well-founded fear of persecution arising from China’s one-child policy, was there fear for reasons of membership of a particular social group? In regard to the term “particular social group”, Jia Cai Zheng & Anor v Minister for Immigration & Multicultural Affairs notes the following:
“The term ‘particular social group’ in the Convention was considered by the Full Court of the Federal Court in Morato v Minister for Immigration, Local Government & Ethnic Affairs (1992) 39 FCR 401. The Court said that a minimum requirement for the identification of a particular social group is the existence of a ‘cognisable group in a society, and cognisable to the extent that there may well be a well-founded fear of persecution by reason of membership of such a group’ (at FCR 406 per Black CJ, French J agreeing)”
The findings of the Tribunal were clearly set out in the decision under the heading “Findings and Reasons” as follows:
“[The applicant] claims that he fears persecution because he and his wife breached China’s family planning regulations. However, he has provided only limited information about the alleged breach, the problems he faced prior to his departure from China and the future harm which he fears if he returns. For example, he has noted in the delegate’s decision, he has not provided the name or dates of birth for his children. Furthermore, it appears that [the applicant]’s fears relate solely to the fact that he and his wife breached China’s family planning regulations. It is my understanding that these regulations are laws of general application and it therefore appears that even if [the applicant]’s claims were accepted at face value, his case does not come within the Convention. If [the applicant] had attended the hearing it would have been possible to investigate his situation more fully. However, he failed to attend and on the evidence currently before me, I am not satisfied that he has a well-founded fear of persecution for any of the reasons contained in the Convention because he breached China’s family planning regulation or for any other reason.” (CB p.62)
This reasoning is supported in the High Court decision of Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (“Applicant A”) per Dawson J:
“In this case, the reason the appellants fear persecution is not that they belong to any group, since there is no evidence that being the parents of one child and not accepting the limitations imposed by government policy is a characteristic which, because it is shared with others, unites a collection of persons and sets them apart from society at large. It is not an accurate response to say that the government itself perceives such persons to be a group and persecutes individuals because they belong to it. Rather, the persecution is carried out in the enforcement of a policy which applies generally. The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms. The only recognisable group to which they can sensibly be said to belong is the group comprising those who fear persecution pursuant to the one child policy. For the reasons I have given, that cannot be regarded as a particular social group for the purposes of the Convention.”
A review of the Tribunal’s decision indicated that the material placed before it by the applicant was minimal in content. The applicant failed to attend the Tribunal hearing despite being advised by letter dated
11 March 2004 that the Tribunal had considered the material submitted by the applicant but was unable to make a decision in his favour on that information alone. Despite this advice, the applicant failed to attend the Tribunal hearing to supplement or augment the information he had previously submitted. Turning to the question for the Tribunal as to whether the applicant qualified for protection for a Convention reason, the authority in Applicant A clearly establishes that this argument cannot be sustained. Given that the applicant’s underlying argument cannot succeed and in the absence of any indication that the Tribunal did not deny the applicant procedural fairness, it was not readily apparent on what ground the applicant could plead a case in which he would succeed.
Conclusion
I am satisfied that the applicant has been provided with adequate opportunity to plead his case. It is acknowledged that as a self represented litigant he is faced with a difficult task in preparing his case for presentation in this Court. However, it was not apparent as to what avenue the applicant had open to him to plead a successful application. He submitted an amended application on each occasion he was required to do so by orders of this Court but he has been unable to comply with the orders to the extent that he has not been able to identify any ground of jurisdictional error. Consequently, his application must ultimately fail. As he has been unable to comply with the orders of this Court, this interim application should be upheld and the substantive application 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 twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 26 May 2005
0