SZASU v Minister for Immigration - [2004] FMCA 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASU v MINISTER FOR IMMIGRATION

[2004] FMCA 215

MIGRATION – Application for summary dismissal of application for review of RRT decision – where applicant failed to file amended application and affidavit as ordered by the Court – where this failure led to the strike out proceedings being brought – whether leave to file an amended application should now be granted – whether applicant’s solicitor should pay part of the costs awarded against the applicant.

Craig v South Australia (1995) 184 CLR 163
MIMA v Yusuf (2001) 206 CLR 323
WAEE v MIMIA [2003] FCAFC 184

Applicant:

SZASU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1026 of 2003

Delivered on:

1 April 2004

Delivered at:

Sydney

Hearing date:

1 April 2004

Judgment of:

Raphael FM

REPRESENTATION

Solicitor for the Applicant:

Mr M Jones

Counsel for the Respondent:

Ms D Watson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application to file amended application dismissed.
The application dated 6 June 2003 is dismissed pursuant to Part 13 Rule 13.10 of the Federal Magistrates Court Rules.
The costs of the proceeding assessed in the sum of $3,200 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
$2,000 of the costs of the proceedings is to be paid personally by the applicant’s solicitor, Mr Michael Jones. The balance ($1,200) is to be paid by the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1026 of 2003

SZASU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings before me today are constituted by a notice of motion made on behalf of the Minister and filed on 15 March 2004, supported by two affidavits, only one of which I believe is relevant for the purposes of this judgment and that is the affidavit of Ms Selth dated

12 March 2004.
The proceedings have an unfortunate history, the applicant arrived in Australia from Lebanon on 11 August 1994. It would appear that he arrived on the basis of a potential spouse visa but his proposed marriage did not take place. On 10 February 1995, he lodged an application for protection. The application was declined by a delegate of the Minister on 21 February 1996 and the applicant sought review from the Tribunal on 1 March 1996. That review was not completed until 28 January 1999.
Between 1999 and 6 June 2003 the situation is somewhat muddy. It would appear that an application to the High Court for relief was filed in December 2002 based upon the Muin and Lie decisions. This application was filed on 6 June 2003 in this court. On 30 July 2003 a directions hearing was held at which time Mr Jones, who is the solicitor for the applicant, appeared and consented to various orders for the further conduct of the matter. These orders included a requirement that the applicant respond to a request for particulars by 13 August 2003. The applicant has not complied with this order.
Another order made by the Registrar was the applicant file and serve any affidavit evidence or amended application upon which he intended to rely, by 27 August 2003. That was not done either. It was because of the failure of the applicant to comply with the orders of the court that the Minister brought her notice of motion.
Within approximately 48 hours of the hearing of this notice of motion, the applicant sent to the respondent Minister's solicitors, an amended application. This amended application provided a new ground for relief and appears to have abandoned the old grounds. The new ground for relief is in the following form.
1. The Tribunal failed to exercise it's jurisdiction under the Act by failing to consider the full extent of the case as put to it by the applicant and/or his legal adviser.
PARTICULARS:
At the hearing of the applicant's claims before the Tribunal on

3 March 1998, the applicant's solicitor put to the Tribunal submissions concerning the present attitude of the Lebanese Government towards members of the Lebanese Forces (the LF). He submitted that the Lebanese Government had implemented a policy of accusing LF members of involvement in serious crimes and was not likely to stop them at points of departure simply because of LF membership. The Tribunal noted these submissions in its reasons (p.15) but failed to make a finding as to whether the applicant would be at risk of being falsely accused at some future time of a serious offence because of his LF membership.
Mr Jones applies for leave to file this amended application and Ms Watson, on behalf of the Minister, objects. If the amended application is not permitted to be filed then there is no outstanding application because, it would seem to me from the draft amended application, that the Muin and Lie points have now been abandoned and in any event, no orders relating to those points have been complied with.
Mr Jones argues the view that the amended application should be allowed. He says that it clearly indicates a possible ground of jurisdictional error on the part of the Tribunal, namely what is known as a "Craig" (Craig v South Australia (1995) 184 CLR 163) or "Yusuf" (MIMA v Yusuf (2001) 206 CLR 323) error and that the applicant should be given an opportunity to argue the point. Ms Watson argues that the claim is late, that the failures to comply with the orders of the court are still extant and most importantly of all, the claim does not disclose any reasonable cause of action because the matter was dealt with by the Tribunal, at least inferentially. I note in this regard the comments of the Full Bench in WAEE v MIMIA [2003] FCAFC 184 where Their Honours said:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.”
I would add to the matters raised by Ms Watson the discretionary element as to whether or not an application of this type should be permitted some five and a quarter years after the Tribunal hearing, when it depends upon a decision of the High Court that was given in 1996.
Mr Jones accepts the submission made by the adviser and set out in full on page 15 of the decision of the Tribunal. It is not dealt with directly but could it be said, without much fear of contradiction, that it was incorporated in the following finding of the Tribunal, which itself follows upon a finding that there was a material change of circumstances in Lebanon since the civil war finished eight years prior to the Tribunal hearing.
“The Tribunal finds that the applicant is a rank and file member of the Lebanese forces without a high profile and is not of any adverse interest to the Lebanese authorities. In view of the vagueness and inconsistency in the applicant's account, together with independent evidence about the position of rank and file members of the LF, the improved security situation in Lebanon since the end of the war and the difficulties faced by someone who was of adverse interest to the authorities in departing Lebanon legally, the Tribunal does not accept the applicant's account of past harassment and detention ... the independent evidence, which the Tribunal accepts, leads it to conclude that there is no real chance that the applicant would, now or in the foreseeable future, be persecuted by any of the groups identified in his application, or that he would be persecuted by any group for the reasons claimed.”
The reasons claimed must include the clear assertion made by the applicant's adviser and found at page 15. I would therefore be of the view that an application made upon the basis of the proposed amended submissions has no chance of success. I would decline to allow the filing of the amended grounds on this basis and also on the discretionary basis that I believe it is not appropriate that an applicant be entitled to trouble the court some five years after the initial hearing with an application that makes a claim that could have been made in any previous review application. The fact that the applicant did not make any review application at all until 2002 is serious enough, but when he approached Mr Jones originally an opportunity was there before him to make this very point but it was not taken.
It follows from what I have said that I would also grant the Minister's application to strike out the original application upon the grounds of the applicant's failure to comply with the orders of the court and I now have to consider the question of a request by the Minister for her costs to be paid personally by the solicitor. I am assisted in coming to this decision by Mr Jones' frank acceptance of responsibility for the failure to comply with the court orders and my order will reflect this. I will say, however, that I do not think it would be appropriate for the normal form of opprobrium that is applied to solicitors against whom such orders are made to be visited on Mr Jones. Mr Jones appears in this court frequently and I have never before had the misfortune of having such an application made before me. I will order that the respondent Minister's costs of the proceedings, which I now dismiss, be assessed.
I assess the total costs in the sum of $3,200 and I order that of that sum $2,000 be payable personally by Mr Jones and the balance by the applicant.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 13 April 2004