SZBKX v Minister for Immigration - [2004] FMCA 199

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBKX v MINISTER FOR IMMIGRATION

[2004] FMCA 199

MIGRATION – PRACTICE AND PROCEDURE – Application by Minister for summary dismissal of application for review of RRT decision – where non-compliance with orders of the court to file and serve amended application and affidavit – where applicant suffers psychological injury – where applicant submits he has arguable case on basis that Tribunal’s findings not supported by the evidence which was before it.

R v Home Secretary Ex parte Bugdaycay [1987] 1 All ER 940

Applicant:

SZBKX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1885 of 2003

Delivered on:

30 March 2004

Delivered at:

Sydney

Hearing date:

30 March 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr Howen

Solicitors for the Applicant:

E Khan

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

I make orders in accordance with the short minutes of order amended and initialled by me and placed with the papers.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1885 of 2003

SZBKX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

These proceedings come before me today on the basis of a Notice of Motion filed on 20 January 2004 by the Minister seeking dismissal of an application for judicial review filed on 12 September 2003 on the grounds that:
“(a)Pursuant to Part 13 Rule 13.03 of the Federal Magistrates Court Rules the applicant has failed to comply with an order of the court and
(b)Pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules the application fails to disclose a reasonable cause of action.”
The application for review of a decision of the Refugee Review Tribunal, was filed on 12 September 2003. The Tribunal decision had been handed down on 21 August 2003. The application had been filed by a firm of solicitors on behalf of the applicant. It contained twelve "grounds of appeal". The first six of those grounds deal with the history of the proceedings. The seventh ground states that the applicant did not attend the hearing before the Tribunal and refers to an affidavit of the applicant in which that non-attendance is explained by reason of mental stress. The eighth to the eleventh grounds deal with alleged breaches of procedural fairness or failure to provide the applicant with natural justice, which appear to arise out of the applicant's non attendance at the hearing.
The Court Book in these proceedings was filed on 1 December 2003 and sent to the applicant's solicitors. On 10 December 2003 at approximately 2.15 p.m. there was a scheduled directions hearing before Registrar Tesoriero. The applicant was represented. Orders were made by consent, including an order requiring the applicant to file and serve an amended and fully particularised application together with an affidavit in support and any evidence upon which he proposed to rely on or before 24 December 2003. No such amended application has been filed or served nor has any further affidavit evidence been provided.
When this matter was first called on for hearing, Mr Khan appeared on behalf of the applicant. He told me that he was awaiting a facsimile of a psychological report on his client. I adjourned the matter and when it was recalled for hearing Mr Howen appeared. Mr Howen had obtained the report which is dated 25 March 2004 and which I admitted for the purposes of considering Mr Howen's application to adjourn this Notice of Motion. The report indicates that the writer considers that the applicant is suffering a significant psychological injury and that his capacity to function at his previous level has been severely compromised as a direct result of alleged torture he suffered in India.
It argues that the applicant is in need of immediate professionally delivered intervention to prevent further deterioration in his status. The writer of the report first saw the applicant on 22 March 2004. Certain psychological testing was soon carried out on three dates given in the report. Mr Howen, in his address to me, indicated that in the short period that he had had to consider these matters, he believed they were grounds upon which a court properly instructed could find that the decision of the Tribunal contained jurisdictional error. He indicated that this might arise out of the manner in which the Tribunal had considered the allegations that the applicant had made concerning the fear of persecution that he expected in his home state of the Punjab.
Mr Howen suggested that the evidence upon which the Tribunal came to its conclusion that the applicant did not face any real chance of experiencing persecution upon his return to India, did not support such findings. He indicated that further evidence in the form of NGO material might indicate where the truth of the situation might lie. It is regrettable that none of these matters was articulated in the form of an amended application or even a draft amended application. The court has to have some concern that any evidence now produced may not be relevant to the task with which it would be faced if it was to hear the application.
It has to be stated that on its face the proceedings appear to have been reasonably dealt with by the Tribunal given its inability to question the applicant. The court notes that the Tribunal did not address two significant factors which it may have dealt with had the applicant been before it namely, the fact that the applicant went to New Zealand for some time but did not appear to have claimed asylum in that country and the possibility of internal relocation. Although I was at first inclined to grant the application by the Minister and dismiss the substantive application, I am persuaded by Mr Howen that he and Mr Khan might be able to put on to the file sufficient new pleading and evidence in support to warrant the matter being heard.
I am sensible of the strictures of Lord Bridge in R v Home Secretary Ex parte Bugdaycay [1987] 1 All ER 940 that one should be particularly concerned where the life or liberty of people are at stake. I am minded to follow certain short minutes of order that have been prepared by Mr Reilly as insurance in the event that I was proposed to take the course which I have decided to take. Those short minutes of order dismiss the Notice of Motion and require the applicant to file and serve an amended application and any evidence on or before 27 April. The short minutes of order also required that the applicant pay the respondent's costs in the sum of $1,750 and provide that if these things do not occur then the primary application should be dismissed.
Mr Howen argues firstly, that the time limited by order (2) of Mr Reilly's short minutes is too short. He says that he wishes to obtain the information from overseas or from NGOs. I have already noted that the green book in this case was filed on 1 December 2003 and that the applicant has had considerable time in which to prepare his case notwithstanding the psychological condition in which he finds himself. I believe that it is in the interests of justice that any timetable that is given is not overly extended. Given the intervention of Easter, I am prepared to change the date from 27 April 2004 to 3 May 2004.
I have also heard Mr Howen on the question of costs. Mr Howen points out what is not ignored by this court, namely that most applicants in migration cases are financially distressed. The court is therefore obliged to take this into account in considering whether or not an order for costs, if made but not complied with, should have the effect of cutting the applicant out from his relief. Notwithstanding this possibility I think it is important that the applicant realises the seriousness of the orders which are being made and the fact that we are presently in this situation because of his failure to appear before a properly constituted Tribunal.
I think the applicant must suffer a penalty in costs and I think he must make at least some effort to satisfy that order as an earnest of his bona fides. I therefore propose to amend the order settled by Mr Reilly so that of the $1,750 of costs which I am awarding the Minister, being costs and disbursements of and incidental to todays proceedings, the sum of $500 must be paid on or before 3 May 2004. If the applicant fails to meet that order or Order (2) in relation to the filing and serving of an amended application and evidence, then I believe it is appropriate that a self-executing order of the type found in paragraph (4) of the short minutes should be made.
I make orders in accordance with the short minutes of order amended and initialled by me and placed with the papers.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: