S1430 of 2003 v Minister for Immigration
[2004] FMCA 808
•26 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1430 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 808 |
| MIGRATION – Application for summary dismissal for failing to comply with orders. |
Federal Court Rules 1979
Federal Magistrates Court Rules 2001
Muin v Refugee Review Tribunal; Lie vMinister for Immigration (2002) 190 ALR 601
NARE vMinister for Immigration [2003] FCA 554
| Applicant: | APPLICANT S1430 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 790 of 2004 |
| Delivered on: | 26 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 October 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $3,000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG790 of 2004
| APPLICANT S1430 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings before me today are an application by way of Notice of Motion from the respondent Minister to strike out the applicant's application for judicial review of a decision of the Refugee Review Tribunal made on 8 May 2000 on the grounds that the applicant has failed to comply with an order made by me on 8 September 2004.
The short history of these proceedings is that the applicant, who is a citizen of Sri Lanka and who arrived in Australia on 5 May 1999 and applied for protection on 7 May 1999, made an application for judicial review of the Tribunal's decision, to which I have referred, on 13 June 2000 in the Federal Court. Those proceedings were discontinued and orders relating thereto were made by Sackville J on 3 October 2000. The applicant then joined the 263 plaintiffs in the case of Muin v Refugee Review Tribunal; Lie vMinister for Immigration (2002) 190 ALR 601, which was proceeding in the High Court of Australia under matter number S89/1999. Following the decision in the Lie case certain procedural steps occurred in the High Court which resulted in this applicant's matter being referred to Emmett J to consider whether or not an order nisi should be made.
His Honour determined that no order should lie but it was indicated that this would not prevent the applicant from bringing further proceedings which he did in this Court by way of an application dated 18 March 2004. When the matter came before me on 8 September 2004 Mr McAuley provided written submissions on behalf of the applicant. Mr McAuley had accepted a brief to provide the applicant with advice under what is colloquially known as “the Minister's scheme”. Mr McAuley did not have the advantage of the green book, which is a compilation of relevant papers used by parties in these migration proceedings. Mr McAuley provided the Court with some very helpful written submissions concerning his client's case and his inability to advise him properly.
With the benefit of submissions from Counsel for the Minister and from Mr McAuley I made two important orders on that day.
The first order which I made was:
(1)The applicant to file and serve full particulars of each ground of his application, together with an affidavit in support on or before 16 September 2004;
(2)If the applicant fails to comply with order 1, the application shall be dismissed.
I then set the matter down for further hearing today.
On 16 September 2004 the applicant did file an affidavit and it is this document which particularly concerns me today. In fairness to Mr Wigney and the Minister I would note that he has provided some substantial submissions giving me reasons why I should dismiss this matter on other grounds but I took the view that in order to properly investigate those grounds it would really be necessary to look at the proceedings before the Tribunal in its entirety and in those circumstances the application was not, to my mind, appropriate for an interlocutory application.
In order to decide whether or not the applicant complied with my orders I have to look first at the application itself and then at the affidavit to see whether it responds to that document and provides the type of particulars to which I refer and to which the Minister is entitled.
The first ground of the application is that the Tribunal exceeded its jurisdiction. This is a very large statement to make. It can involve alleged errors of law, and possibly there may be some suggestion that the Tribunal was not properly constituted. In order for it to have any meaning at all it must be particularised, and particularised by stating exactly where the jurisdiction was exceeded. The affidavit provided by the applicant provides no reference to exceeding jurisdiction although it does in the fourth paragraph on the second page, say:
“From the above paragraphs, my inference is the Tribunal had erred in law, which went to its jurisdiction against me by exceeding its authority.”
For the reasons which I will give concerning the matters that constitute the earlier paragraphs, I do not think that this is sufficient, and I do not believe that that matter has been properly particularised.
The second allegation is that the Tribunal took into account irrelevant considerations. I would have expected that the affidavit with which I was provided to set out from the Tribunal's decision, a copy of which the applicant admitted he had, each and every relevant consideration that the Tribunal is alleged to have taken into account. Whilst the applicant makes a number of attacks upon the Tribunal in the early paragraphs of his affidavit these seemed to me to be attacks re-agitating facts and the merits of his claim rather than a list of the material considered by the Tribunal and used by it to come to its conclusions.
The third allegation is that the Tribunal misunderstood the law it was obliged to apply. Once again, I expected to receive from the applicant some particulars of what this law was and the manner in which it was misunderstood. To the extent that this involves the allegations made in the second and third paragraphs on the second page of the applicant's affidavit relating to the Part B documents and the failure to provide him with details of country material upon which the Tribunal relied, I will deal with these in more detail later. Otherwise I can find no particulars.
The fourth matter raised by the applicant was that the Tribunal failed to take into account considerations made irrelevant by the governing legislation. This is a form of phraseology which is regrettably often seen in this court. Without any particularisation it makes little sense. There must be some examples available of the considerations that are made irrelevant and some evidence from the decision that the Tribunal failed to take that into account. None have been provided here.
The next allegation made is that the decision was tainted by procedural unfairness or bias. To the extent that the procedural unfairness relates to the two matters I have previously mentioned concerning the Part B documents and the country material I will deal with them. There is no other indication in the affidavit of what matters constitute the alleged procedural unfairness. Insofar as bias is concerned the courts have made it clear by the provisions of Order 54 of the Federal Court Rules 1979 that these allegations are to be taken very seriously and must be particularised at the outset. No such particulars have been provided other than a suggestion that the failure to provide the green book was an indication of bias. This only has to be set out to be appreciated as not a relevant matter to take into account in considering the Tribunal's own decision.
The next matter is that the Tribunal failed to accord the application natural justice because the Tribunal did not receive from the delegate and consider the documents referred to in Part B of the delegate's decision. This is the Muin and Lie point. It is repeated in paragraph 2 on page 2 of the applicant's affidavit. Reference to the Part B documents is made in the delegate's decision. A copy of the delegate's decision is given to an applicant and of course to the Tribunal. It would therefore be possible for the applicant to tell me which of the documents he is referring to. He has failed to do this.
It is now well accepted that the Muin and Lie decisions of the High Court, whilst containing some important law on the subject of procedural fairness, proceeded on the basis of a number of agreed facts which have not been present in any other subsequent case. It has also now been made clear by the Full Bench of the Federal Court that unless an applicant can provide evidence which would, if accepted, establish facts similar to those agreed in the High Court cases such proceedings are unlikely to succeed.
My orders made it clear that the applicant would have to provide the fullest particulars of these allegations and unfortunately all he has done is to repeat in slightly enlarged form the submission made in his application.
The next matter raised by the applicant was that the Tribunal did not bring to his attention and give him an opportunity to respond to the country information on Sri Lanka on which the Tribunal relied and which was adverse to his review application. The alleged particulars of that statement are:
“The Tribunal did not bring to my attention and give me an opportunity to respond, the country information on Sri Lanka, on which the Tribunal relied and from which it drew conclusions, which were adverse to my refugee claims and to my refugee application.”
The repetition of a submission in an affidavit is not full particulars of that submission. The applicant could have provided me with some details of the particular documents that he referred to because he had before him a copy of the Tribunal's decision. He did not do so.
The final matter in the applicant's application states that a copy of a decision and a letter from his then solicitor was attached. This takes the matter no further.
The affidavit itself proceeds after the paragraph which I have just set out to make reference to certain factual matters concerning the applicant's treatment in Sri Lanka and certain further evidence he believes he could provide to the Court if requested. In regard to this I should perhaps refer the applicant to the seminal views of Allsop J in NARE vMinister for Immigration [2003] FCA 554 where his Honour said at [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not and cannot involve simple refining of facts found by the Tribunal. Rather, the review is, formally speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality or lack thereof is such as to betray a failure to undertake properly the required task. This is why it is not open to the Primary Judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
I am satisfied that the applicant has not complied with my orders. They were intended to provide him with an opportunity, in the face of some serious criticism of his conduct in restarting proceedings which had already been terminated to indicate to the Court why the matter should be re-ventilated and what he now claimed were the errors of jurisdiction into which the Tribunal fell. He has singularly failed to do that. Thus and in compliance with my order 2 the application must be dismissed.
I order that the application be dismissed and I order that the applicant pay the respondent's costs which I assess in the sum of $3,000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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2
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