SZCER v Minister for Immigration
[2005] FMCA 171
•20 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCER v MINISTER FOR IMMIGRATION | [2005] FMCA 171 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa . |
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
Migration Act 1958 (Cth), s.91X
Judiciary Act 1903 (Cth), s.39B
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZCER |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2764 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 a Mandarin interpreter.
| Solicitors for the Respondent: | Ms J Bautista of Sparke Helmore |
ORDERS
I uphold the respondent’s Notice of Motion and dismiss the substantive application pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with an order of the Court.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2764 of 2003
| SZCER |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court by the respondent as a Motion seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth). Both parties appeared. The applicant is 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.
Although the matter appeared in a directions hearing on 20 January 2005 for the allocation of a substantive hearing date there are serious deficiencies in the proceedings in that there had been an order to file an amended application which had not been complied with. I believed 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 I would publish my written reasons for those orders.
The proceedings
The respondent moved the Court that the proceedings be dismissed pursuant to Part 13, Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court. 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 15 December 2003.
Applicant’s 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 “SZCER”.
The applicant, who claimed to be a citizen of the People’s Republic of China, most recently arrived in Australia on 12 October 2002. On
30 October 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 19 November 2002 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant a protection visa and on
29 December 2002 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.
The applicant stated she was born in May 1963 in Heilong Jiang city in China. She claimed she completed eleven years of schooling and worked as a production manager in Tianyi Shopping Centre Sweet Shop, Tianjin City. The applicant claimed she is a Falun Gong practitioner and received considerable benefit from the practice of Falun Gong. She claimed that when Falun Gong became illegal and the Chinese Government were imposing penalties to prevent practitioners of the art, she began practising Falun Gong in secret. The applicant claimed that police became aware of her Falun Gong practice and came to her house to warn her that if she continued to practice she would be sentenced to jail for up to ten years. In the circumstances, the applicant claimed she believed she had no alternative but to go overseas to avoid danger. The applicant claimed she had to pay a substantial bribe to a government officer to get a passport and visa to visit Australia (Court Book p.23)(“CB”).
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)The initial application for a protection visa was lodged with the Department on 30 October 2002.
b)The application was rejected by the delegate on 19 November 2002.
c)
The applicant sought a review of the delegate’s decision on
23 December 2002.
d)On 23 October 2003 the Tribunal constituted by Ms Margaret O’Brien made a decision to affirm the delegate’s decision to refuse to grant a protection visa. That decision was handed down on 18 November 2003.
e)On 15 December 2003 the applicant filed an application in the Federal Magistrates Court of Australia seeking a review of the Tribunal’s decision of 23 October 2003. Those proceedings were given the Federal Magistrates Court Proceedings No: SYG2764 of 2003.
f)On 13 May 2004 a directions hearing was held before Registrar Hedge where Court orders were made by consent that the applicant file and serve an amended application given complete particulars of each ground of review being relied upon by the applicant in this application to the Court by 27 July 2004 (Order 1). This order was not complied with.
g)The matter was again listed for directions on 20 January 2005 for allocation of a final hearing date. The orders of 13 May 2004 allowed the respondent to request the matter be listed in a non compliance list before a Federal Magistrate with the intention of applying for summary dismissal if Order 1 of the orders was not complied with.
Application for review of the Tribunal’s decision
The application for review under s.39B of the Judiciary Act 1903 filed by the applicant on 15 December 2004 contained the following ground:
“1.I meet the refugee criteria.
When I was in P R China, my original country, I am a Falun Gong practitioner. I insisted to practice Falun Gong because I have benefited a lot from it. I worked as a product manager in Tianyi Shopping Center Sweet Shop which is located in Tianjin City. On March 1998 the company was fined a large amount of money by Chinese government and the authority even threatened to close my company just because I am a Falun Gong practitioner. The Chinese government saw that such material penalties could not stop me to practice Falun Gong. In August 2001 the policeman came to my home to give me the last notice: if they heard that I practice Falun Gong again they would sentence me into jail for up to ten years. At the same time one of my colleague has arrested and imprisoned. I was also forced to declare separation from Falun Gong.” (Errors included)
Respondent’s submissions
Ms J Bautista, Solicitor for the respondent, made the following submissions:
a)At the directions hearing before Registrar Hedge on 13 May 2004, the applicant indicated that she was a self represented litigant and that she wished to take up the offer to participate in the Pilot RRT Legal Advice Scheme (NSW). An adviser was allocated and arrangements were made for a conference, however the applicant failed to attend the conference and the adviser subsequently mailed his advice to the applicant on 3 June 2004.
b)The Short Minutes of Order made by Registrar Hedge on 13 May 2004 required the applicant to file an amended application giving complete particulars by 27 July 2004. This order was not complied with.
c)The original application filed on 15 December 2003 did not disclose any cause of action in respect of the Tribunal’s decision (application reproduced in paragraph 6 above).
d)The applicant has failed to prosecute this matter and the respondent seeks the matter be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth).
Reasons
The relevant facts pertaining to an application need to be supplied by the applicant in as much detail as is necessary to enable the applicant to establish the facts. It is for the applicant to make out her case: Minister for Immigration & Ethnic Affairs v Guo & Anor per Kirby J at 596. On a number of occasions the applicant has been provided with the opportunity to prosecute her case. However, this has not been pursued by the applicant to even a limited degree.
The Tribunal member noted in the decision that the applicant was invited to attend the hearing to give oral evidence and present additional argument in support of her case, but the applicant failed to appear. The necessary correspondence was sent to the applicant’s private address and to her postal address. The material sent to her residential address was returned, marked “Insufficient Address” although the address was exactly as advised by the applicant. The correspondence forwarded to the applicant’s postal address was not returned but no response was received by the Tribunal. No contact telephone numbers or details of anyone assisting the applicant were provided.
The applicant indicated that she wished to participate in the Pilot RRT Legal Advice Scheme (NSW) however, she failed to attend the organised conference and the advice was mailed to her without any face to face conference occurring.
The original application for review does not contain any grounds and is restricted to a single statement that she is a refugee together with a brief historical statement of the reasons for her departure from the People’s Republic of China and the circumstances leading to her arrival in Australia. The orders made by the Court Registrar on
13 May 2004 were not complied with. When the applicant appeared before me she was asked whether she wished to make any submissions in response to the respondent’s application to have the matter dismissed for failure to comply with the Court orders. The applicant declined the offer and indicated through the interpreter that she did not wish to say anything.
I believe the applicant has been given ample opportunity and assistance to pursue her application before this Court but she appears to be taking a totally passive role and making no attempts to prosecute the matter. As a self represented litigant I can appreciate the problems the applicant may have in articulating her claim in a foreign language and foreign jurisdiction. However, where an applicant is self represented the Court must independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors.
I have had the benefit of reading the material contained in the Court Book, including the Tribunal’s decision. It is clearly evident that the decision maker has been provided with very limited material which, in effect, is a typed one page statement of fact. The opportunity to participate in an oral hearing before the Tribunal or to supply further documentation in support of the applicant’s claim was not pursued.
A fair reading of the material in the Court Book does not disclose a jurisdictional error.
Conclusion
For the reasons set out above, I believe the respondent’s Notice of Motion should be upheld and the substantive matter filed on
15 December 2004 should be dismissed.
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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 February 2005
0
0
0