SZCBZ v Minister for Immigration
[2005] FMCA 1194
•9 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCBZ v MINISTER FOR IMMIGRATION | [2005] FMCA 1194 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 425
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 16.05
Federal Court Rules, order 35, r.7(2)
Capital Webworks Pty Ltd v AdultShop.com Ltd & Ors [2005] FCA 389
Wati v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 148 ALR 578
De L v Director-General, NSW Department of Community Services (No. 2) (1997) 190 CLR 207
NAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 225
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 887
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659
SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 222
SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1160
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
| Applicant: | SZCBZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2669 of 2003 |
| Delivered on: | 9 August 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms K Crawley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed by the applicant on 15 June 2005 seeking re-instatement of this matter is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2669 of 2003
| SZCBZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 15 June 2005, the applicant moves the Court for orders that the proceedings be reinstated and that the orders made on 2 November 2004 pursuant to Part 13, Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) dismissing the application on the basis of the non appearance of the applicant be set aside.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 December 2003 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 October 2003 and handed down on 5 November 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 June 2002 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks the Tribunal decision be set aside and the matter be remitted to the Tribunal for reconsideration according to law.
For the purpose of this Notice of Motion the respondent tendered and applied for an affidavit of Kathleen Mary Crawley sworn on
25 October 2004 and filed in Court on 2 November 2004 (“the affidavit of Ms Crawley”) to be admitted into evidence.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZCBZ”.
The applicant, who claims to be a citizen of Mongolia, arrived in Australia on 14 April 2002. On 23 May 2002 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-32) (“CB”). On 28 June 2002 the delegate refused to grant a protection visa (CB pp.38-45) and on
15 July 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.46-49).
In her original protection visa application, the applicant claimed to fear persecution on the basis of her Christian beliefs. She claimed that in Mongolia she had not had the opportunity to acknowledge her Christianity freely and openly because she would be humiliated, abused and physically attacked by religious fanatics and individuals who thought that Christianity undermined traditional Mongolian values. The applicant stated she left Mongolia to come to Australia because she feared for her life (CB p.17).
The Tribunal’s findings and reasons
On 18 July 2003 the Tribunal wrote to the applicant advising it had considered all the material before it in relation to her application but it was unable to make a favourable decision on that information alone (CB pp.56-57). The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 September 2003. The Tribunal’s letter was sent to the applicant’s adviser who was listed as the authorised recipient of the applicant’s correspondence and a copy was also sent to the applicant at her residential address. No response was received to the Tribunal’s letter. The applicant did not appear before the Tribunal on the day of the scheduled hearing (CB pp.69-70).
As the Tribunal was unable to question the applicant regarding her claimed Christian faith and, in the knowledge that the Mongolian population is overwhelmingly Buddhist (93%), the Tribunal was not satisfied the applicant was a Christian and noted that the applicant’s claim may have been fabricated. The Tribunal also noted that the applicant’s claims were too vague and lacking in detail for it to be satisfied that she had a well-founded fear of persecution in Mongolia (CB p.70). The Tribunal noted that general independent evidence does not indicate that Christians in Mongolia are persecuted over their faith (CB p.71). The Tribunal stated that, given the lack of detail in the applicant’s claims and given the independent evidence did not support the applicant’s claim that Christians were persecuted in Mongolia, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution in Mongolia over her religious or any other Convention ground (CB p.72).
Application for review of the Tribunal’s decision
On 5 December 2003 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The Tribunal erred in determination whether I have a real chance to be persecuted if I go back to Mongolia.
2.The Tribunal wrongly applied a test whether the protection of my home country is available.
Chronology
A brief chronology of this matter is as follows:
a)On 14 April 2002 the applicant arrived in Australia;
b)On 23 May 2002 the applicant applied for a protection (Class XA) visa;
c)On 28 June 2002 the grant of a protection visa was refused by the delegate;
d)On 15 July 2002 the applicant applied to the Tribunal for a review of the delegate’s decision;
e)On 11 September 2003 the applicant failed to attend the scheduled Tribunal hearing;
f)On 5 November 2003 the Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa;
g)On 5 December 2003 the applicant lodged an application with the Federal Magistrates Court of Australia for a review of the Tribunal’s decision;
h)On 29 April 2004 Registrar Tesoriero adjourned the directions hearing due to the unavailability of a Mongolian interpreter;
i)On 28 May 2004 at a further directions hearing, Registrar Tesoriero made orders that the applicant file an amended application by 27 August 2004 and the matter be listed for call over on 20 January 2005;
j)On 31 August 2004 the respondent sent a letter to the applicant noting that her amended application had not been filed within the required time period and requesting amended application be filed on or before 7 September 2004 (affidavit of Ms Crawley, marked “A”);
k)On 9 September 2004 the respondent sent a copy of a facsimile forwarded to the Federal Magistrates Court requesting the matter be listed for a non-compliance hearing (affidavit of Ms Crawley, marked “C”);
l)On 27 September 2004 the respondent sent a letter to the applicant advising that the matter was listed for a non-compliance hearing on 2 November 2004 at 11.30 a.m. at John Maddison Tower (affidavit of Ms Crawley, marked “E”);
m)On 29 September 2004 the applicant telephoned the respondent and was advised the matter was listed for a non compliance hearing on 2 November 2004;
n)On 2 November 2004 the matter was listed for a non compliance hearing and the applicant failed to attend. Orders were made by Federal Magistrate Lloyd-Jones that the applicant was dismissed and the applicant to pay the respondent’s costs.
o)On 2 November 2004 the respondent sent a letter to the applicant advising of the orders made by the Court on that day;
p)On 15 June 2005 the applicant filed (but did not serve the respondent) with a Notice of Motion and affidavit seeing re-instatement of the application;
q)On 12 July 2005 the applicant appeared at a directions hearing seeking reinstatement of the matter and the setting aside of the orders of 2 November 2004. At that time the following orders were made:
1.The proceedings be adjourned to 3.15 p.m. on 9 August 2005.
2.The applicant file and serve an amended application and any supporting evidence relied upon by 2 August 2005. The amended application must contain at least one asserted and particularised jurisdictional error.
3.The respondent has leave to file and serve any further written submissions in response to any amended application by 7 August 2005.
4.The costs of today are reserved.
Applicant’s submissions
The applicant appeared self represented with the aid of a Mongolian interpreter. On 15 June 2005 the applicant filed an application which sought the following orders:
1.An order of the Federal Magistrate Lloyd-Jones dated 2/11/2004 be set aside.
2.An order that no action is taken to remove the applicant from Australia while the decision is pending.
3.Order for costs. And any further order that the honorable Court may deem appropriate.
In support of the application, the applicant filed an affidavit on the same date which contained the following two statements:
1.The above matter was dismissed without the hearing. I do not know the consequence of that dismissal.
2.I am requesting your honor please restore this matter and set aside the order dated 2/11/04, I will provide more in my written submission.
The applicant did not file any written submissions in support of her Notice of Motion and when invited to make oral submissions these were limited to a brief discussion regarding a letter of advice she had received from the Panel Adviser indicating that copies of the advice were to be sent to the Court and to the Minister. This issue remained unresolved as nothing had been received by the Court or the representatives of the Minister and there was no reference on the letter to indicate that copies had been forwarded to anyone other than the applicant. Nothing specific in relation to the application before the Court was raised.
Respondent’s submissions
Ms K Crawley, Solicitor for the respondent, filed written submissions which addressed the following issues:
a)Rule 16 of the Rules deals with judgments and orders. Rule 16.05(1) provides that the Court may vary or set aside its judgment before it has been entered. Rule 16.05(2) provides that the Court may vary or set aside its judgment or order after it has been entered if:
i)the order is made in the absence of a party; or
ii)the order is obtained by fraud; or
iii)the order is interlocutory; or
iv)the order is an injunction or for the appointment of a receiver; or
v)the order does not reflect the intention of the Court; or
vi)the party in whose favour the order is made consents.
b)In Capital Webworks Pty Ltd v AdultShop.com Ltd & Ors, Nicholson J gave consideration to the circumstances in which the Federal Court would set aside an order under the provisions of order 35, rule 7(2) of the Federal Court Rules which are in almost identical terms to Rule 16.05 of the Rules. His Honour noted that the discretionary power entrusted to the Court required the existence of exceptional circumstances and he referred to the decision of the Full Court of the Federal Court in Wati v Minister for Immigration & Multicultural & Indigenous Affairs where it was said:
“The authorities there referred to stressed the need for great caution in the existence of circumstances which are quite exceptional.”
c)As was noted by the High Court in De L v Director-General, NSW Department of Community Services (No. 2) at page 215:
“[I]t has been said repeatedly that a heavy burden is cast upon the applicant for re-opening to show that such an exceptional course is required ‘without fault on his part’.”
d)Far from demonstrating exceptional circumstances, the applicant has failed to:
i)explain her reason for not complying with the Court’s orders;
ii)file with the Court and serve on the respondent an amended application which complies with the Court’s orders;
iii)explain her reason for failing to attend the non-compliance hearing on 2 November 2004; and
iv)explain her delay in filing the present application.
e)The applicant stated that she did not understand the consequence of the dismissal, not that she was unaware of it, and that she “would provide more in [her] written submission” which have not been forthcoming. The respondent submitted that these “reasons” do not classify as “exceptional” circumstances which are “without fault” on the part of the applicant. Moreover, the applicant has failed to file and serve an amended application and thereby has still not complied with the Court’s orders of 28 May 2004. In addition, a matter for consideration is whether the applicant has any prospect of succeeding if the orders previously made were set aside. The Federal Magistrates Court has previously decided that if there is no “demonstrable error” in the Tribunal’s decision then that is a factor weighing against the setting aside of orders previously made (NAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (“NAIJ”) per Raphael FM).
f)The applicant’s original application was not particularised and, the respondent submitted, does not demonstrate jurisdictional error on the part of the Tribunal. The Tribunal’s decision primarily rests upon its inability to establish the relevant facts, namely that the applicant was a Christian and its lack of satisfaction that the applicant held a well-founded fear of persecution by reason of her religion. In circumstances where the applicant failed to attend the Tribunal’s hearing, despite being put on notice of the inability of the Tribunal to be satisfied of her claims, there was arguably no error in the Tribunal’s approach: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 (“VSAF of 2003”); SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs and NAVX v Minister for Immigration & Multicultural & Indigenous Affairs (“NAVX”). The Tribunal further found, having regard to the independent country information, that there was no indication that Christians in Mongolia were persecuted because of their faith. It concluded that given the lack of detail in the applicant’s claims and given that the independent evidence before it did not support her claims that Christians were persecuted in Mongolia, it was not satisfied that the applicant had a well-founded fear of persecution in Mongolia because of her religion or any other Convention ground.
Reasons
Solicitors for the respondent listed this matter for a directions hearing before this Court on 2 November 2004 seeking the matter be dismissed on the grounds that the applicant had failed to comply with the orders of the Court. The applicant did not appear at the scheduled hearing and orders were made pursuant to Rule 13.03A(c). The affidavit of Ms Crawley gave details of a conversation between the applicant and Ms Crawley which indicated that she had received the respondent’s letter stating the matter was listed for 2 November 2004 and that the applicant was required to attend Court on that date. The applicant indicated that she would attend on 2 November 2004.
On 15 June 2005 the applicant filed an application and supporting affidavit seeking reinstatement of the proceedings and seeking to have the orders of 2 November 2004 set aside. The matter was listed for
12 July 2005 and the applicant appeared. The applicant made oral submissions indicating that she wished to proceed with the matter but had experienced some difficulties due to the lack of interpreting services in the Mongolian language. One of the problems the applicant claimed to have experienced due to the lack of availability of interpreters was that she was unable to contact the Panel Adviser allocated to her under the Pilot RRT Legal Advice Scheme (NSW). Because of these concerns I adjourned the matter generally until
9 August 2005 to allow the applicant to obtain advice from the Panel Adviser and to prepare an amended application that identified a ground of review and was particularised.
When the applicant appeared before the Court on 9 August 2005, she had in her possession a memorandum of advice from the Panel Adviser. However, no amended application had been filed and the applicant indicated no action had been taken by her or on her behalf to prepare such a document. No written submissions were filed in support of the applicant’s application. The applicant did provide the interpreter with some handwritten notes in English which she intended to have read to the Court but this document did not address either the issue of submissions or amended application.
The applicant was asked to provide an explanation of her failure to attend the non compliance hearing on 2 November 2004, the failure to comply with various Court orders, the failure to file an amended application and the reason for the delay in the filing of the present application. The applicant was unable to provide any explanation for any of these issues. The applicant did raise a number of issues in respect of correspondence between herself and the respondent’s solicitors but none of this material appeared to be in dispute and the nature of the discourse appeared to be more of confirmation that the documents had been forwarded and received. There did not appear to be any dispute that any of the relevant documentation had not been received by the applicant and that the applicant was in any way disadvantaged by the non receipt of any particular piece of correspondence.
Where an applicant is self represented, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The manner in which the grounds have been drafted in the original application do not demonstrate any jurisdictional error on the part of the Tribunal. The only remaining avenue open to this Court was to consider the Tribunal’s decision to determine whether any error was apparent on its face and any of the supporting documentation contained in the Court Book may indicate that the Tribunal had not discharged its duty in accordance with its delegated powers under the Act. A fair reading of the Tribunal’s decision and the supporting documents did not indicate any apparent error. The Tribunal’s decision was brief as the issues before it were devoid of detail. The main claim by the applicant was that she was persecuted as a religious minority by being a Christian in the predominantly Buddhist country of Mongolia. The independent country information indicated there was no evidence of overt actions against the minority Christian groups. Further, the Tribunal doubted the applicant was a practising Christian based on the limited information provided to the Tribunal on this subject.
This raised the matter of significance of whether the applicant has any prospect of succeeding if the orders previously made were set aside: NACA v Minister for Immigration & Multicultural & Indigenous Affairs; NAIJ per Raphael FM. The applicant has not shown that she has an arguable case and that the Tribunal’s decision should be quashed on the ground of jurisdictional error. Furthermore, on the face of the material before the Court, which was restricted to an assessment on the face of the documents, there is no matter capable of amounting to jurisdictional error. The applicant was put on notice by the Tribunal that it could not make a favourable decision on the material before it and in accordance with s.425 of the Act invited her to a hearing. The applicant failed to respond to the hearing invitation and did not appear at the Tribunal’s scheduled hearing. There can be no error in circumstances where the applicant declines the invitation to a hearing, consenting to the Tribunal making a decision on the papers alone and where she has been found by the Tribunal to have provided insufficient material to establish her claim to the satisfaction of the Tribunal: NAVX; SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs (affirmed on appeal SZAKV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1160); VSAF of 2003. It is for the applicant to satisfy the Tribunal that the statutory elements for the grant of a visa have been established: Minister for Immigration & Ethnic Affairs v Guo & Anor.
Conclusion
I am satisfied that the current attempt to re-invigorate the review of the Tribunal’s decision of 5 November 2003 is not warranted and that the applicant had had every opportunity to pursue the appropriate avenues of this original decision. The original application did not raise any issue to indicate that the Tribunal’s decision contained jurisdictional error. Consequently, I dismiss the application by the applicant to have the matter re-instated and the orders of this Court made on 2 November 2004 set aside.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 August 2005
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