SZBNX v Minister for Immigration
[2004] FMCA 365
•16 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBNX v MINISTER FOR IMMIGRATION | [2004] FMCA 365 |
| MIGRATION – Application for review of RRT decision – where Court directed the filing of an amended application – where the amended application relied on repealed legislation – whether consent orders made by Registrar should be vacated in respect of self-executing order that failure to file and serve further amended application would result in dismissal and costs – where applicant represented – where further amended application filed but not served – where despite order dismissing application a further amended application was filed – whether this document should be taken to have been validly filed – whether self-executing dismissal should stand given that further amended application not served and not sufficiently particularised – whether actions of applicant indicate an inability or unwillingness to cooperate with the Court. |
Refugee Review Tribunal Ex parte Aala (2000) HCA 57
Reg v The Home Secretary Ex parte Bugdaycay (1987) 1 AC 614
Lockington v MIMIA [2004] FCA 385
Applicant A215/2003 v RRT [2004] FCA 377
Wang Chen Jian v Bolkus, MIEA (No 2) (1994) 130 ALR 717
Brown v Zomba Music Publishers Australia Pty Ltd [2004] FCA 324 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200
Idoport Pty Ltd v National Australia Bank Ltd; Idoport Pty Ltd v Argus [2002] NSWCA 271
NAHI v MIMIA [2004] FCAFC 10
Muin v RRT (2002) 76 ALJR 966
Parra v MIMA [2000] FCA 85
SBBA v MIMIA [2003] FCAFC 90
NAEB v MIMIA [2003] FCA 719
Dranichnikov v MIMA (2003) 197 ALR 389
| Applicant: | SZBNX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 2036 of 2003 |
| Delivered on: | 16 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 7 June 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Levet |
| Solicitors for the Applicant: | Bharati Solicitors |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Orders of Registrar Hedge dismissing the application for review stand.
Applicant to pay the respondent’s costs before the Registrar as agreed in the sum of $1,500.00.
Costs of these proceedings reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2036 of 2004
| SZBNX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the court on an application by the respondent who declined to agree with the applicant that certain consent orders made by a Registrar of this court on 18 March 2004 be vacated insofar as order 3 was concerned. Order 3 is in the following terms:
“If the applicant fails to comply with Order 2 by 8 April 2004 the application is dismissed by force of these orders with costs fixed in the sum of $1,500.00.”
The issues which I have been asked to decide are:
i)Was order 2 of the Consent Orders complied with in whole or in part?
ii)If order 2 was not complied with in part should order 3 be vacated in any event?
iii)Should the applicant be allowed to file and serve a further further amended application in the form of the document which was presented to the court on 27 May 2004 and to continue proceedings on the basis of that document?
iv)Who should bear the costs of the application?
History
The applicant is a citizen of India who arrived in Australia on 10 October 2001. On 19 November 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. On 7 June 2002 a delegate of the Minister refused to grant a protection visa and on 11 July 2002 the applicant applied for review of that decision. The Refugee Review Tribunal held a hearing attended by the applicant by video on 11 August 2003. The Tribunal made its decision to affirm the decision of the delegate on 14 August 2003 and handed it down on 5 September 2003. On 1 October 2003 the applicant sought review from this court.
The first application for review cited three grounds for setting aside the decision of the Tribunal:
“1.The RRT made a jurisdictional error when it ignored and overlooked relevant material and relied on irrelevant material.
2.The decision of the RRT involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
3.The applicant was procedural fairness (sic).”
The applicant provided an affidavit in support of his application, the relevant parts of which are in the following form:
“I am aggrieved by the decision of the RRT, when the Tribunal member did not give importance of my oral or written evidence. The Tribunal member made a decision based on only information supplied by the newspapers. In one place (at page No 5) the Tribunal member wrote “In relation to the applicant’s claim of arrest in 1994, the Tribunal gives weight to country information cited below indicated that the AISSF operated legally at that time, after having banned (sic) before a brief period almost a decade beforehand.”
It is almost impossible to get any documents of detention or arrest from Punjab when I am not there. This is true that I was arrested in 1994. Whatever I told during the hearing time was true and correct. The Tribunal member did not believe in my oral evidence given at the time of hearing. The Tribunal member is totally unaware of the current situation in Punjab. Still plenty of young Sikhs are arrested and pay price either in cash to police or their life in false encounter . I have nothing to convince the member when already made up his mind to reject my application same as the Department of Immigration did. I have fear of persecution. If I am compelled to return to India, I will be killed or detained for long by the Punjab police or Indian authorities.”
In accordance with the usual practice in this court the matter was given a return date for directions on 28 January 2004. On that day the applicant appeared before Registrar Kavallaris. He was represented by a solicitor, Mr Bharati. Short Minutes of Order were made of which the relevant orders are in the following form:
“1.The applicant file and serve an amended and fully particularised application together with an affidavit in support and any evidence upon which he proposes to rely on or before 25 February 2004.
2.In default of Order 1 the respondent’s solicitors have liberty to approach the associate to the docket Federal Magistrate to have the matter relisted for further directions before the Federal Magistrate as soon as reasonably practicable.
On 25 February 2004 there was filed with the court an amended application. The amended application commenced with the following:
“1.Pursuant to s 476(1)(g) of the Act there was no evidence or other material to justify the making of decision.”
The document then proceeds to set out a number of ways in which it is alleged that s.476 had been breached by the Tribunal. Unfortunately for the applicant his solicitor Mr Bharati did not appear to be aware, as at 25 February 2004, s 476 of the Migration Act 1958 (Cth) was repealed in October 2001. No affidavit or other evidence was filed.
On 2 March 2004 the respondent’s solicitors wrote to Mr Bharati stating relevantly:
“On 2 March 2004, we were served with the applicant’s amended application which pleaded that the Tribunal breached section 476(1)(g) of the Migration Act in that there was no evidence or other material to justify the decision.
The current section 476 of the Migration Act deals with the jurisdiction of the Federal Court and the Federal Magistrates Court. It appears that the applicant is seeking to rely on old Part 8 grounds of review available pursuant to the previous s 476, repealed in October 2001. Clearly this amendment does not provide a ground of review. Please give this matter your urgent attention.”
On 10 March 2004 the respondent’s solicitors wrote to the court seeking that the matter be relisted and arrangements were made for it to be put back before the Registrar on 18 March 2004. On that day the consent orders previously referred to were made. The consent orders in full are as follows:
“1.The costs of todays directions hearing fixed in the amount of $300.00 be paid by the applicant’s solicitor, Mr Jyoti Bharati, personally within 21 days of today’s date pursuant to Part 21, Rule 21.07(1) of the Federal Magistrates Court Rules.
2.The applicant file and serve a further amended application for judicial review clearly identifying the grounds of jurisdictional error relied upon and confirming particulars of evidence of every ground of review relied upon on or before 8 April 2004.
3.If the applicant fails to comply with order 2 by 8 April 2004 the application is dismissed by force of these orders with costs fixed in the sum of $1,500.00.”
On 14 April 2004 the respondent’s solicitors wrote to the associate to FM Barnes advising that the orders of 18 March had not been complied with and seeking that orders be made in chambers dismissing the application and ordering costs. It appears that it was later considered that such an application was not necessary and that the consent orders made before Registrar Hedge were sufficient. Those orders were stamped on 15 April 2004. When the respondent’s solicitors sought to bring those orders to the attention of the applicant’s solicitor he responded on 17 May 2004 with an affidavit sworn by himself and his daughter (his secretary) which indicated that they had sent a further amended application to the court on 8 April 2004.
For the purposes of the proceedings before me it was conceded by the respondent that the applicant had filed a further amended application by fax on 8 April 2004 and it was conceded on the part of the applicants that such further amended application had not been served.
The further amended application which is before me is a document entitled “Amended Application”, it bears a court seal dated 16 April 2004 but the document itself is dated 25 February 2004. The grounds of review set out in that document are in the following form:
“1.The Refugee Review Tribunal failed to disclose the particular construction it gave to the information from the different independent sources. Such failure amounted to a denial of procedural fairness.
2.The Tribunal was heavily relied on the DFAT information, which are old and made by the government officials. This information is not much independent as the Tribunal claimed in this case. If the reliance was going to be placed to this effect on country information about which is information from sources other than the applicant, then, the applicant be informed of the specific country information to be used against the applicant and given an opportunity to respond it and in this case the applicant was not given an opportunity to contest at any time prior to the RRT decision.
3.The general information gathered by the Tribunal were used to weigh against the applicant’s case in the final outcome. The Tribunal used all the information for a matter of reasoning and evaluation of the applicant’s case for the protection visa. The applicant claims that the Tribunal made a jurisdictional error when he was not informed about the important section of the information on which the decision was made. The applicant lost the opportunity to contest the unfounded and old information about the situation in Punjab.”
Finally, there was brought into the controversy a document which was presented to the court and has a stamp on it indicating that it was filed on 27 May 2004 entitled “Further Amended Application”. The grounds of that document are in the following form:
“1.That Section 61 of the Australian Constitution imposes on the Respondent an inexcludable requirement of the due process including procedural fairness.
2.That Section 424(3)(a) of the Migration Act is in breach of such requirement of due process and therefore ultra vires Section 61 of the Australian Constitution.
3.The following jointly and severally amounted to breaches of a constitutionally guaranteed right of due process, or in the alternative constituted an error of law amounting to jurisdictional error:-
(a)The Tribunal erred in the degree of weight it attributed to untested “Independent Country Information”;
(b)In preferring “Independent Country Information” to the sworn evidence of the Applicant, the Tribunal was giving effect to an inflexible rule or policy;
(c)The Tribunal erred in preferring “Independent Country Information” to the evidence of the Applicant;
(d)The Tribunal erred in having regard to selected “Independent Country Information” in circumstances where country files in their entirety held by the Respondent are not available to the Applicant;
(e)In all circumstances, a reasonable apprehension exists that the Tribunal as constituted was not impartial.”
The respondent does not accept that this document has been validly filed or constitutes a valid application because, she argues, by the time this document was sought to be filed the consent self executing orders had already taken effect and the application had been dismissed.
Discussion
The Minister argued before me that the applicant had never complied with order 1 of the Consent Orders of 28 January 2004 in that no affidavit in support or evidence upon which the applicant proposed to rely had been filed at any time. These orders superseded the original affidavit filed by the applicant, which I have quoted from in these reasons. She also argued that the further amended application which had been filed by facsimile on 8 April 2004 had never been served and therefore order 2 of the consent orders made by Registrar Hedge had not been complied with and thus the self executing dismissal should stand. She further argued that I should not exercise any discretion that I might have to vacate the Registrar Hedge order because the document which was filed as a further amended application did not particularise the grounds and thus did not comply with order 2 insofar as it did not clearly identify the grounds of jurisdictional error relied upon nor did it confirm particulars of evidence of every ground of review relied upon. The applicant sought to weave around this objection by referring to the further amended application which he claimed contained an important constitutional point that should be argued. The point was whether s 61 of the Constitution gave an absolute requirement for procedural fairness that extended beyond the prescriptive requirements of s.422B Migration Act so that s.424A of the Migration Act would also be unconstitutional because the applicant had not been provided with all the country information that was available to the Tribunal. The applicant argued that a requirement for procedural fairness meant that all information available to the Tribunal should be made available to an applicant, (not just the information upon which the Tribunal proposed to rely), so that the applicant could point out to the Tribunal information which was favourable to the argument he was putting to it rather than have to deal only with information that was not favourable to him.
The applicant submits that the existence of an arguable case to impugn ss 422B and 476 is found in the judgments of Gaudron J and Kirby J in Refugee Review Tribunal Ex parte Aala (2000) HCA 57 and in Vol 1 of O’Hair on Judicial Process, (Aardvark 2001) at p583. It is suggested that the obligation devolves from the legislation providing the power, not the common law, which can be overridden by legislation such as s 422B. The highest source of power is in the constitution and defined in s 61.
For the purposes of this application I do not have to “decide” the constitutional issue. The Minister has not had an opportunity to put her arguments in respect of the point made by the applicant. But the applicant relies heavily on the existence of the issue for me to exercise my discretion to vacate the orders. I am disinclined to provide him with the relief claimed.
Although sensible of the remarks made by Lord Bridge in Reg v The Home Secretary Ex parte Bugdaycay (1987) 1 AC 514 at 531 “when an administrative decision under challenge is said to be one which may put the applicant’s life at risk the basis of the decision must surely call for the most anxious scrutiny”, I am also concerned that the proper administration of justice requires that parties, particularly represented parties such as the applicant in this case, abide by orders of the court, particularly orders to which they have themselves consented. There was in this case effectively an admission that all three applications failed to particularise a comprehensible ground upon which the applicant sought review. All three applications were prepared by a solicitor. One application was an embarrassment relying, as it did, on a section of the Act which had been repealed over two years prior. The others indicated a lack of command of the English language which neither clients nor the court should expect from a person admitted to practice as a solicitor of the Supreme Court of New South Wales.
Even if these failures were to be excused, the weight of authority demonstrates that where a history of non-compliance with orders of the Court exists, the appropriate action is for the proceedings to be dismissed: Lockington v MIMIA [2004] FCA 385; Applicant A215/2003 v RRT [2004] FCA 377; Wang Chen Jian v Bolkus, MIEA (No 2) (1994) 130 ALR 717; Brown v Zomba Music Publishers Australia Pty Ltd [2004] FCA 324. In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200, Wilcox and Gummow JJ considered the circumstances where it is appropriate to dismiss a proceeding on grounds of non-compliance. Their Honours said at 208-209:
“It is noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although in the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden on the parties.
…
The discretion conferred by O10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will be appropriately exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power; cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non-compliance is continuing and occasioning going unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations.”
Such an approach by the Courts is necessary to ensure that applicants (or respondents as the case may be) do not habitually disregard court orders and undermine the processes of the Court. Further, I do not consider it unreasonable when determining whether to exercise the Court’s discretion in relation to summary dismissal to have regard to the high demand on the Courts time in respect to its migration jurisdiction. In Idoport Pty Ltd v National Australia Bank Ltd; Idoport Pty Ltd v Argus [2002] NSWCA 271 at [28] Mason P noted the following comments of the trial judge, Einstein J:
“54. Clearly as the defendants submit there is an increasing responsibility on the part of judges to have regard, in controlling their lists and the cases that come before them, to the interests of the community, and the litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case: see Gleeson CJ in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 at 493. [See generally the authorities referred to in para 15-para22 of the November judgment.] In Sali v SPC Ltd (1993) 67 ALJR 841 at 849, Toohey and Guadron JJ made the point that the need to avoid disruptions in the Court lists with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard are “pressing concerns to which a Court may have regard.””
The failure of the applicant to serve the amended application on the respondent’s solicitors, despite it being a term of the consent orders reached by the parties and later an order of the court, coupled with the fact that neither the amended application nor the further amended application sufficiently particularised the grounds of the application being brought further militate against a favourable exercise of the Court’s discretion.
In the very first application the applicant impugns the independent country information. But he does not suggest that the Tribunal had on its many databases information which had not been given to him and which could have been favourable to him. He complains about the difficulty of obtaining his own documentation. It is clear that it is for the applicant to persuade the Tribunal that it should achieve the state of satisfaction required by s 36 of the Migration Act: NAHI v MIMIA [2004] FCAFC 10; Abebe v The Commonwealth (1999) 162 ALR 1; Muin v RRT (2002) 76 ALJR 966 and that mere assertion is not enough: Parra v MIMA [2000] FCA 85; SBBA v MIMIA [2003] FCAFC 90; NAEB v MIMIA [2003] FCA 719. As Kirby J articulated in Dranichnikov v MIMA (2003) 197 ALR 389 at [78]:
“The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties.”
In any event, the first application was superseded by the second pleading the repealed section of the Migration Act. The third application could be read to be a complaint about the manner in which the Tribunal dealt with the country information. A reading of the decision suggests that the country information utilised by the Tribunal was not put to him for comment either individually or as general evidence that the unsatisfactory human rights in the Punjab had improved considerably since the early 1990s so that it could conclude:
“The Tribunal finds there has been a substantial change in circumstances in Punjab. The indiscriminate violence of both the authorities and of some Sikhs pursuing their aims has dissipated and been replaced by a situation where the authorities target those people it suspects of being “militants” or who have “some established history of terrorist associations.” The applicant does not have credible claims to indicate that he is at any risk of attracting the interest of the authorities.” [CB 97]
I have not been provided with the transcript of what occurred at the hearing. It may be that these matters were put to the applicant. However, assuming that they were not this does not appear to constitute a breach of the requirements of natural justice because of the existence of ss 422B and 424A(3)(a). The further amended application does not hint at a constitutional challenge to these sections.
But there seems to me to be a more fundamental difficulty which would face the applicant under any circumstances. At [CB 98] the Tribunal says:
“Additionally, the applicant’s capacity to relocate to another part of India if he were to fear for his well-being in Punjab is, of itself, fatal to his endeavour to be declared a refugee. The applicant’s claim that he went into hiding for several months immediately before coming to Australia because he was sought by the authorities for expressing his political views is entirely at odds with all available country information, his capacity to retain a passport and to leave India legally. The Tribunal concludes that the claim of going into hiding has been fabricated in order to bolster false claims to asylum. It finds that he was not wanted by police or other authorities for any Convention reason.
The Tribunal has considered whether, in line with the principles enunciated in the matter of Randhawa v MILGEA (1994) 124 ALR 265, it would be reasonable to expect the applicant to relocate to another part of India if he has an actual fear of returning to his home area. It notes that the applicant is relatively well educated. He has a trade qualification that would provide access to a range of work whereever he resided. He speaks Hindi and Punjabi, and indicated on his initial application for a protection visa that he is also able to read and write English. If he were to have a subjective fear of persecution in relation to his own state the Tribunals finds it would be reasonable for him to relocate to another place such as New Delhi, or to another large city away from those areas where there was substantial conflict between Sikhs and their opponents for several years.”
This finding has not been challenged in any of the four applications and would seem to be fatal to any successful application for review.
In all the circumstances I do not believe that this is an appropriate case in which I should excuse the applicant’s failure to comply with the terms of the consent orders agreed to on 18 March 2004 or to vacate the self executing order that resulted in the dismissal of the proceedings. I would not permit the filing of the further amended application. The result is that the orders of Registrar Hedge will stand and that the application remains dismissed. Under those orders the applicant must pay the respondent’s costs agreed in the sum of $1,500.00. At the end of argument before me on 7 June 2004 I indicated that I would hear the parties as to costs of this application including any argument as to whether or not the Minister’s costs should be paid by Mr Bharati personally.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 16 June 2004
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