SZCCH v Minister for Immigration
[2005] FMCA 212
•20 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCCH v MINISTER FOR IMMIGRATION | [2005] FMCA 212 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – Notice of Motion of Objection to Competency upheld and substantive application dismissed. |
Migration Act 1958 (Cth), ss.91X, 424
Judiciary Act 1903 (Cth), s.39B
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
| Applicant: | SZCCH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2676 of 2003 |
| Delivered on: | 20 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 20 January 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms J Bautista of Sparke Helmore |
ORDERS
The respondent’s Notice of Motion is upheld.
The substantive application is dismissed in accordance with Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the Court orders.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2676 of 2003
| SZCCH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the respondent as a Notice of Motion seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth). Both parties appeared at the hearing. The applicant was a self represented litigant and appeared with the assistance of an interpreter. The respondent solicitor made oral submissions in support of the Motion. A Court Book had been prepared, filed and served.
The substantive proceedings in this matter had not yet been listed and the respondent’s solicitors had brought this Motion because there were serious deficiencies in the proceedings in that the applicant was ordered to file and serve amended pleadings but these orders were not complied with. I believe it was in both parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated that I would publish my written reasons for those orders.
The proceedings
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. The respondent moved the Court for orders that the proceedings be dismissed pursuant to Part 13, Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failure to comply with an order of the Court.
For the purpose of this Motion the respondent tendered and applied for a letter from the respondent’s solicitors to the applicant dated 4 January 2005 to be filed in Court. A Court Book (“CB”) prepared by the respondent’s solicitors was filed and served on 4 May 2004.
Applicant’s background
The applicant in these proceedings was not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and was given the pseudonym “SZCCH”.
The applicant, who claimed to be a citizen of the People’s Republic of China, arrived in Australia on 24 November 2002. On 19 December 2002 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 31 December 2002 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant a protection visa and on 3 February 2003 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.
The applicant claimed to be a single, Christian woman who was born in February 1970 in Liaoning, China. She claimed to have completed nine years of schooling and prior to her arrival in Australia worked as a secretary. The applicant claimed to be persecuted by the Chinese Government because of her Christianity and came to the Government’s attention because of her involvement in activities to promote freedom of religion.
Litigation history
A brief summary of the litigation history of the applicant is as follows:
a)Initial application for a protection visa lodged with the Department on 19 December 2002;
b)The application was rejected by the delegate on 31 December 2002;
c)
The applicant sought a review of the delegate’s decision on
3 February 2003;
d)On 24 October 2003 the Tribunal constituted by Ms Antoinette Younes made a decision affirming the delegate’s decision to refuse to grant a protection visa. This decision was handed down on 19 November 2003.
e)On 5 December 2003 the applicant lodged an application with the Federal Magistrates Court of Australia seeking a review of the Tribunal’s decision dated 24 October 2003. The proceedings were given the Federal Magistrates Court Proceedings No. SYG2676 of 2003.
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) which contained the following grounds:
“1.I was not given a proper opportunity to explain my case.
2.The Tribunal was wrong to find I was not a refugee. The Tribunal made mistakes in saying I was not a refugee.”
Applicant’s filed submission
On 16 June 2004 the applicant filed a document at the Registry headed “Submission” which contained the following statements:
“I lodged the application for a protection visa with DIMIA and a review application with RRT. The officer made jurisdiction mistakes when considering my application. He mentioned at the refusal letter: ‘The applicant has not provided specific details relating to the following: 1. her involvement in activities “to strive for freedom of religion”. 2. The “different parties and meetings to have public speeches to strive for freedom of religion and democracy”. 3. The reasons as to why she is “worried about” her safety. 4. The nature of the “mental torment” she had suffered when she was in China. The applicant has been given an opportunity to support her application both at the primary level as well as at the review stage. She has had an opportunity to put forward any supporting documentation. She was invited to appear at a hearing before the Tribunal where the Tribunal would have had an opportunity to explore the claims further.’
I believe that the officer had bias against me. First of all, I was not given an opportunity to support my application at the primary level, I was not allowed to submit any further information, and I was not invited for an interview at the primary level. At the review stage, I requested the migration agent to postpone the hearing date for me because I could not manage to attend the interview on that day. However, it was not successful. I don’t think the officer should make a decision in such a simple way. He did not have any evidence to justify his decision.
I believe that the officer made jurisdiction mistakes when considering my application. He did not consider all the information provided, he did not give me opportunity to explain my case and he simply just refused my application base on not believing me.
In all, I believe that the officer’s consideration was very vague, and amount to no more than a series of unsupported and unjustified assumption. He should not have made such mistake when considering my application.”
Respondent’s submissions
Ms J Bautista, Solicitor, appearing for the respondent, made the following oral submissions to the Court:
a)A directions hearing was conducted on 5 May 2004 and the applicant consented to Short Minutes of Order that an amended application giving complete particulars of each ground of review being relied upon be filed and served by 17 June 2004.
b)At the directions hearing the applicant was provided with the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW). However, this offer was declined.
c)On 17 June 2004 the respondent received a faxed document entitled “Submission”. Whilst some grounds were identified therein, it was the respondent’s submission that the document does not comprise an amended application giving complete particulars of each ground of review.
d)On 4 January 2005 the respondent wrote to the applicant putting her on notice that the respondent intended to seek summary dismissal of the application for failure to comply with the Court orders pursuant to r.13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth).
e)It was submitted that the applicant had a history of failing to prosecute her matter before the Tribunal or this Court.
f)It was submitted that the reason the applicant was unsuccessful before the Tribunal was because she had provided insufficient details and evidence of her claim.
g)The applicant declined the invitation to attend the Tribunal hearing.
h)The applicant has had in excess of one year to provide material to the Court in support of her application for judicial review.
Applicant’s submissions
When the applicant was invited to make submissions in support of her position, she indicated she had not received any notification from the Tribunal of the hearing. I indicated to the applicant that I would not accept that proposition because a copy of the invitation extended to her was contained in the Court Book (pp.40-41) as well as a copy of the completed “Response to Hearing Invitation” (CB p.44) which indicated a “No” response to the question “Do you want to come to a hearing?”. The Response was signed and dated 3 October 2003. The copy “Response” was shown to the applicant and she confirmed that it contained details of her name, mailing address, authorised recipient and signature.
The next submission by the applicant was that she understood that at today’s call over she was to be given a hearing date in approximately one year and she would have time to commence preparation of her case in those circumstances. I indicated to the applicant that the Court had made orders requiring her to complete the filing and serving of certain documents by designated dates and, on her own admission, these orders had not been complied with. It was also indicated to the applicant that this was not an open ended process that permitted the continual submission of material at the applicant’s convenience. The opportunity to put forward material existed when the original application was made to the Department or at the invitation of the Tribunal to submit further material or attend an oral hearing in order to augment material previously submitted.
The applicant also submitted that she just required more time in which to think about the matter and to decide the nature of the errors that she was going to put forward in regard to the Tribunal’s decision.
Reasons
The Tribunal could only proceed to a decision on the facts before it as alleged by the applicant and contained in the papers. The relevant facts pertaining to the application need to be supplied by the applicant in as much detail as necessary to establish those facts. It is for the applicant to make out her own case: Minister for Immigration & Ethnic Affairs v Guo & Anor per Kirby J at 596. The evidence before me was that the applicant was willing to wait passively until the relative time periods expired and she was forced to take some action to prosecute her case. In this case the applicant had an opportunity to attend a Tribunal hearing and furnish additional facts. That opportunity was declined and the applicant cannot now complain that she was not invited and not provided with the opportunity to furnish further facts and ask for them to be taken into account.
The Tribunal’s invitation letter issued pursuant to s.424 of the Act extended the invitation to the applicant to attend an oral hearing and, additionally, to send any documents or written arguments the applicant wishes the Tribunal to consider in its assessment of the review of the delegate’s decision. The only caveat placed on the submission of further documents or arguments was that they must be submitted in English or translated by a qualified translator. The invitation to attend the Tribunal hearing was declined (CB p.44).
At approximately the same time, the Tribunal notified the applicant that her migration agent was no longer registered and it recommended that appropriate steps be taken should she wish to nominate a replacement agent. When the applicant appeared before the Court Registrar, Short Minutes of Order were entered into by consent, requiring the applicant to file and serve certain documents by nominated dates in preparation for the matter to be heard at a final hearing at a date yet to be established. It was acknowledged the applicant did file and serve a document headed “Submission”. The document contained a re-statement of the applicant’s position and made some unfounded allegations in respect of not being provided and given the opportunity to address the Tribunal or provide it with further material. A similar allegation was made from the bar table in response to the Motion before the Court. When the applicant was taken to the documentation in the Court Book which confirmed this allegation was not true, the point was not pursued by the applicant.
The view expressed by the applicant was that the purpose of the call over attended by the applicant on the day of the Motion being transferred to this Court was that she would receive a hearing date for twelve months hence and she would begin looking for a lawyer to provide her with advice on the contents of her application and she would attempt to obtain some material from China in support of her case. The submission made from the bar table was a request that the matter be allowed to proceed to trial to allow the applicant to have her day in Court.
Having reviewed the Court Book including the delegate’s decision and the Tribunal’s decision, together with the respondent’s material filed in Court, I was not satisfied that any effort is being made to prosecute the matter. If a future hearing date was allocated, I was not convinced that the applicant would take any steps to change this pattern of behaviour and she would be quite content to effectively sit in a queue until the hearing became before the Court in the same state of preparation as it is now. The current state of the pleadings did not identify any cause of action that the Tribunal has made a jurisdictional error in its decision making process. Consequently, I upheld the respondent’s Notice of Motion.
Conclusion
For the reasons stated above, I uphold the respondent’s Notice of Motion and dismiss the substantive application filed on 5 December 2003.
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 nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 2 March 2005
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