S210 of 2004 v Minister for Immigration - [2005] FMCA 714

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S210 of 2004 v MINISTER FOR IMMIGRATION

[2005] FMCA 714

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of Thailand – where the Applicant did not attend the RRT hearing – where the Applicant did not attend court for the hearing.

PRACTICE & PROCEDURE – invitation to hearing – whether Applicant advised of hearing in accordance with Migration Act 1958 (Cth) s.425 – abuse of process – where earlier application dismissed – costs – indemnity costs.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.425, 426A, 441A, 475A
Federal Magistrates Court Rules 2001 r.13.03A (d)

SZDMD v MIMIA [2005] FCA 126
Gaudry & Gaudry (2004) FLC 93-203
Colgate Palmolive Company v Cussons Pty Ltd [1991] AIPC 90-825

Applicant:

APPLICANT S210 of 2004

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3515 of 2004

Delivered on:

18 May 2005

Delivered at:

Sydney

Hearing date:

18 May 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

No Appearance

Solicitor for the Respondent:

Mr Markas

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Application is dismissed.
That the Applicant is to pay the Respondent’s costs on an indemnity basis fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3515 of 2004

APPLICANT S210 of 2004

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal that was made on 25 November 2003 and was handed down on 18 December 2003. The Applicant is a citizen of Thailand who arrived in Australia on 20 June 2003 and on 25 July lodged an application for a protection visa. A delegate of the Minister refused that application on 30 July and on 20 August 2003 the Applicant applied for a review of that decision.
The Applicant's claim for a protection visa was based on what she said was a well founded fear of persecution arising out of her activities in a lobby group involved in opposing child prostitution and exploitative child labour practices in Thailand.
Regrettably, the Applicant did not attend the hearing of the Refugee Review Tribunal. The Tribunal member noted that the Applicant had been invited to the hearing by letter and noted that no response was received to the letter sent either to her home address or to her postal address. The letter sent to the Applicant's home address was returned unclaimed.
The Applicant did not attend the Tribunal hearing and as there was no indication before the learned Tribunal member as to why the Applicant did not attend the Tribunal decided to exercise its power under s.426A of the Migration Act to make its decision on the review without taking any further action to enable the Applicant to appear before it.
In the circumstances I am satisfied that the Tribunal's exercise in the power under s.426A of the Act was appropriate. Notwithstanding the failure of the Applicant to attend the hearing the Tribunal member made a conscientious effort in my view to examine all of the material provided by the Applicant in the support of her claim. Regrettably as the Tribunal member notes at page 63 of the Court book, the Applicant had provided only the barest outline of what she feared might happen to her in Thailand and why. The Tribunal member noted that the Applicant's claims amount to a series of assertions almost entirely lacking in any detail.
The Tribunal member noted also at page 163 and I quote:
I have been unable to explore aspects of the Applicant's claims with her. Therefore a number of relevant questions as to her actual experiences in Thailand and how those experiences might be said to underlie an objective basis for her claimed fear of mistreatment are left unanswered. In my view the totality of the Applicant's claims amount to little more than several unsupported and vague assertions. Of themselves they do not suggest that she has experienced convention persecution in the past or that she faces a real chance of experiencing convention persecution in the future. If there are explanations or answers to the questions raised by the Applicant's claims they are not before me.
It is quite clear that the Tribunal was of the view, somewhat regretfully perhaps, that the Applicant had not attended the hearing in order to explain to the Tribunal why it is that her claim for a protection visa should succeed. Quite clearly the Tribunal formed the view that there was just not enough evidence to support the Applicant's claims and that the Tribunal therefore had no alternative but to affirm the decision not to grant a protection visa. In my view the sparse extent of the material provided by the Applicant to the Tribunal allowed the Tribunal no other course.
Notwithstanding her failure to appear at the Tribunal the Applicant has commenced proceedings in the High Court of Australia by means of a draft order nisi filed on 3 June 2004. In that draft order nisi the Applicant claims the following:
a)That the Tribunal exceeded its jurisdiction in failing to accord the prosecutor procedural fairness as required under s.424A (1) and s.418 (3) of the Migration Act 1958.
b)That the First and Second Respondent denied the Applicant natural justice.
The only particulars provided are that the Refugee Review Tribunal failed to put to the prosecutor in those proceedings, now the Applicant, any of the adverse material or information that formed the basis of the Second Respondent's reasons for refusing the prosecutor a protection visa and that failure could have affected the outcome.
The Applicant has not attended the proceedings today and at the request of the solicitor for the Respondent I have acceded to a request that I should deal with this matter under r 13.03A (d) and hear this matter on the merits as an undefended hearing. The reason why this application has been put to me and the reason why I have decided to accede to that request is that the Applicant has already been given ample opportunity to put her claims to the Court. In fact she has been given ample opportunity to put her claims to three Courts.
She commenced these proceedings in the High Court of Australia. They were remitted to the Federal Court and in due course Bennett J transferred the proceedings to this Court. In the meantime, however, the Applicant chose to commence separate proceedings in this Court in the circumstances set out in the affidavit of Nicholas Malcolm Wood affirmed on 20 April 2005. The proceedings in this Court were commenced by the Applicant on 16 January 2004 and came before Registrar Hedge of this Court on 7 May 2004.
On that day the Applicant did not appear before the learned Registrar. Not surprisingly the learned Registrar dismissed the application and has happened in these proceedings is that the Applicant has proceeded, although even less than half - heartedly with her original application. She has not attended today. The matter was called at 10:16am. The Applicant did not attend. The solicitors for the Respondent attended and a Thai interpreter attended.
Despite the failure of the Applicant to appear and the information was given to the Court that the Respondent's solicitors had heard nothing from the Applicant as to why she may have been delayed or hindered from attending, I stood the matter down in the list to allow the Applicant the opportunity to attend Court to take into account the fact that she may have become confused as to which Court room to attend or may have been delayed on public transport, although I did note earlier in the day that the trains appeared to be running on time having travelled on one myself.
I called the matter again 10:51am. The Applicant was again called three times outside the Court. She did not appear. My Deputy Associate made inquiries and ascertained that no message had been received either by fax or by telephone call or by any other means from the Applicant or from anyone on her behalf indicating that she had been delayed or hindered or was ill or injured or was in any other way unable to attend the proceedings today. For the Respondent, Mr Markus, informed me that his office was unaware and he personally was unaware as to any reason or any legitimate reason why the Applicant did not answer the call.
I then proceeded to decide the matter as an undefended hearing and I have considered the matter on its merits in accordance with r13.03A (d). The reasons are of course the fact that there have been other proceedings commenced in this Court and dismissed and that the Applicant has been noteworthy in her consistent non attendance in these proceedings. In my view she has been given ample opportunity to attend Court today and I have delayed the matter long enough and I am mindful of the decision that Hely J in a decision of SZDMD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 126 endorsed the procedure of this Court in dealing with tardy applicants.
I have looked at the substance of the Applicant's claim. In my view there is no basis for finding that she was denied procedural fairness. There is no basis for her claim that she has been denied natural justice. She provided very little information to the Refugee Review Tribunal and that information was so sparse as to be incapable of persuading the tribunal acting according to law of the merits of her case. She did not attend the Tribunal hearing.
To my mind the tribunal had no option but to act in the way that it did. The Applicant's claim before the Tribunal was unsuccessful because the Applicant did not attend to present her case. There is no jurisdictional error. There is no reviewable error. The application will be dismissed. I dismiss the application now.
This is a matter where it is appropriate for an order for costs to be made. The Respondent Minister has had to go to the trouble of preparing this case for a hearing and the matter was listed for final hearing today. This is not an interlocutory application, this is not a mention, and this is a final hearing. It was quite clear that the solicitors for the Respondent had no option but to prepare the case for a defended hearing. It may have been that the Applicant may have instructed a solicitor to appear for her. Counsel may have been briefed. The solicitors for the Respondent could do nothing else except prepare to run the matter and it is quite clear to me that they were prepared to run the matter today.
What Mr Markus has put to the Court with some justification is that these proceedings represent an abuse of process. I have previously made it clear that the Court takes an abuse of process very seriously. There have been two applications made, the original one remitted to this Court which I am hearing today and the other application started on 16 January which took up the Court's time on two occasions in January and May and of course the Applicant did not attend.
There is an application for indemnity costs. I have taken the view in previous proceedings that where it can be shown that proceedings constitute an abuse of process that an application for indemnity costs will be given very serious consideration. I have set out my understanding of the law relating to the award of costs on an indemnity basis in a recent decision called Gaudry & Gaudry No. 2 (2004) FLC 93-203, in which I examined all the circumstances set out in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248.
In my view this is a matter that comes within the matters set out in Colgate Palmolive v Cussons (supra). It is quite clear that if the Applicant had been properly advised she would have been left in no doubt that her application before this Court for review of the decision of the Refugee Review Tribunal could not have succeeded. The Applicant is to pay the Respondent's costs on an indemnity basis.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 26 May 2005