S1912 of 2003 v Minister for Immigration - [2005] FMCA 528

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1912 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 528

MIGRATION – Application to set aside orders dismissing application for judicial review.

Migration Act 1958

Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289

Applicant:

APPLICANT S1912 OF 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 778 of 2004

Judgment of:

Barnes FM

Hearing date:

15 April 2005

Delivered at:

Sydney

Delivered on:

15 April 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application under Rule 16.05 of the Federal Magistrates Court Rules is dismissed.
That the applicant pay the costs of the respondent fixed in the sum of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 778 of 2004

APPLICANT S1912 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed on 8 April 2005 seeking that the court set aside orders made on 20 January 2005 dismissing the application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules.
The background to these proceedings is that the applicant, who is a citizen of India, arrived in Australia on 5 September 1990. He sought refugee status. That application was unsuccessful and he sought review by the Refugee Status Review Committee (RSRC). The RSRC ceased to exist in July 1993. The application for review was determined by the Refugee Review Tribunal. The Tribunal affirmed that decision in March 1995. However the applicant was able to apply for a protection visa on 22 May 1995. That application was unsuccessful. He sought review of the decision. The Tribunal made a decision on
30 December 1996, affirming the decision not to grant the applicant a protection visa. On 17 March 2004 the applicant filed an application in this court seeking review of the Tribunal's decision of 30 December 1998 claiming that he had some religious problems in India, and had very big religious problems in India.
The background to these proceedings is that the applicant was part of the Muin class action and then initiated an individual application which was remitted by the High Court to the Federal Court. The respondent's legal representatives informed the court that such application was one of the applications dismissed by Emmett J on 20 February 2004 (see Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289). Such dismissal did not prevent the applicant from subsequently commencing an action in this court.
At a directions hearing on 28 July 2004 which the applicant attended with the assistance of an interpreter, consent orders were made that the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by 20 October 2004. It was also ordered by consent that if an amended application was not filed in accordance with those orders the respondent may request the registry to list the matter in a non-compliance list with the intention of applying for summary dismissal due to non-compliance with the direction of the court.
The applicant did not file an amended application of any kind prior to 20 October 2004, although he did file a document headed submissions, and addressed To Whom It May Concern, in which he asked for compassion to be allowed to live in Australia. Pursuant to Order 3, the respondent requested that the matter be listed in a non-compliance list.
It came before the court on 14 December 2004. The applicant attended.
Despite his failure to file an amended application with full particulars of the grounds relied on, he was allowed further time to do so. An order was made for him to file and serve an amended application giving complete particulars of each ground of review on which he intended to rely by 5 January 2005. It was also ordered that in the event that this order was not fully complied with the respondent had liberty to apply to the court for orders to be made in chambers dismissing the applicant's application. If that occurred, the applicant was to file and serve written any submissions in relation to such application for dismissal within five days of service of the application.
On 30 December 2004 the applicant filed an amended application. Under the heading The Grounds of the Application, he claimed that:
The decision of the RRT always against me. They never believe me. Anyhow I am sending you some papers, which I have taken from the Green Book. That is a good evidence, which I have given at the time of hearing. I have very big religious problems in India, and also some other problems. My request is that I be given permanent residency. Thanks.
Annexed to the amended application was a substantial extract from the decision of the Tribunal of which the applicant sought review; a further copy of the submission of 22 September 2004 (which did not address any potential error in the Tribunal decision but rather referred to the applicant's personal situation and repeated his fear of persecution because of his religious beliefs in India); a copy of a newspaper article from a date which appears to be 1995 in relation to the Punjabi police being put on alert; and a copy of a translation of a document dated
23 December 1993, headed Khalistan Commando Force, conveying a threat in relation to the son, or sons, of the recipient. This document was before the Tribunal.
Pursuant to the orders of 14 December 2004, on 10 January 2005 the solicitors for the respondent applied for the application to be dismissed in chambers on the basis that the amended application did not comply with the direction to give complete particulars of each ground of review upon which the applicant intended to rely. The respondent also sought costs. The respondent's solicitors notified the applicant of this application. The applicant wrote to the court on 18 January 2005 stating that he wished to advise the reasons why his case should not be dismissed with costs fixed in the sum of $4000 as was sought by the respondent. He continued:
I do not have permission to work, and have not had work rights for the last 4 years. However when I am granted permission to work, then I will be in a position to pay the costs of the court.
He attached a copy of a letter from someone who was providing him with residence and financial assistance. He sought return of the matter to the Refugee Review Tribunal.
On 20 January 2005 the court made orders in chambers dismissing the application pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules and ordering that the respondent’s costs in the sum of $2800 be paid by the applicant.
The applicant filed the present application on 8 April 2005. The application itself merely says:
I seek PR.
I take ‘PR’ to be a reference to permanent residence. In a supporting affidavit, the applicant stated that he was not satisfied with the decision of the court and requested that the orders made on 20 January 2005 be set aside. Documents were also sent to the court consisting of a copy of the supporting letter from the person providing him with residence and financial assistance and a statement by the applicant that he was unable to pay costs and wanted to apply for leave to appeal, although he has, in fact, filed this application.
The court has power under Rule 16.05 of the Federal Magistrates Court Rules to set aside an order made in the absence of a party. There is no suggestion made to the court today that such provision would not be applicable in the present circumstances of the case. However, the power to set aside an order is a power to be exercised sparingly and in exceptional circumstances. In this instance the application was dismissed in circumstances where the applicant had filed a completely inadequate application initially, had had the benefit of advice under the Federal Court Legal Advice Scheme, had not filed an amended application as ordered at a directions hearing yet had been given a further opportunity in the course of a non-compliance list to file an amended application with full particulars as was explained to him at the time. While he did file an amended application it did not contain anything that could be described as particulars of grounds for judicial review. Rather it took issue with the merits of the Tribunal decision and the fact that the Tribunal did not accept his claims on the evidence before it.
Such amended application did not comply with the order for filing of an amended application with full particulars of the grounds of review relied upon. The respondent sought dismissal on that basis and the applicant was given a further opportunity to address that application for dismissal. In response he addressed the issue of the payment of costs. He now seeks that the orders that were made dismissing his application be set aside. In considering whether the discretion to set aside such orders should be exercised I have also considered whether he has demonstrated that he has an arguable case.
In the hearing today the applicant was given an opportunity to address his concerns about the Tribunal decision and to indicate how it was that he said the Tribunal had fallen into jurisdictional error. He again drew the court's attention to the documents which had been annexed to his amended application and stated that he gave all this evidence to the Tribunal, but it did not believe him. However, he did not identify in any way any possible ground for judicial review of the Tribunal decision.
In all the circumstances of this case I am not satisfied that it is a case in which the court should exercise its jurisdiction under Rule 16.05 to set aside the orders that were made dismissing the applicant's application for judicial review. The applicant has had several opportunities to identify his claims. He has not taken those opportunities and no arguable case has been established, nor, indeed, has any explanation been provided for the failure to provide an amended application with full particulars (as distinct from an amended application which merely repeats the applicant's claims seeking merits review and to be a refugee).
Accordingly the application should be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant submits that he is unable to pay the costs as he does not work. However his lack of funds and inability to work is not a reason for departing from the normal rule that an unsuccessful applicant should meet the costs of the respondent, although it maybe a matter to be taken into account by the respondent in determining whether and how to seek to recover any costs from the applicant.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 26 April 2005