SZCNF v Minister for Immigration
[2004] FMCA 1072
•7 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCNF v MINISTER FOR IMMIGRATION | [2004] FMCA 1072 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
| Applicant: | SZCNF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 138 of 2004 |
| Delivered on: | 7 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 7 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by the applicant.
| Solicitors for the Respondent: | Ms K M Crawley of Clayton Utz |
ORDERS
The application is dismissed pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) in default of compliance with the Court’s orders.
Pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001 (Cth) the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 138 of 2004
| SZCNF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
The respondent in these proceedings moves the Court for orders that the proceedings be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) in default of compliance with Court orders. For the purpose of this Motion the respondent tenders and applies for an affidavit of Kathleen Mary Crawley sworn on 7 December 2004 (“the affidavit of Miss Crawley”) to be admitted into evidence. A Court Book (“CB”) prepared by the respondent solicitors was filed and served on 26 May 2004.
Applicant’s background
The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 11 September 2002. On 24 September 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 12 November 2002 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant a protection visa and on 13 December 2002 the applicant applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision, made on 24 November 2003 and handed down on 17 December 2003, affirmed the decision of the delegate to refuse to grant a protection visa.
The applicant, who was born on 7 December 1962, is a married male with a wife and children who remain in China. In a type written statement of claim attached to the original visa application the applicant states he was a hotel manager. The applicant arranged a room for a friend at the hotel he managed and the friend used it to hold an illegal political gathering. Subsequently the applicant went to a social gathering with the same friend and the event was another illegal political gathering. As a result of these meetings the applicant joined the political group and participated in its activities. The police then discovered the group and arrested the applicant. He was detained from 28 May 2001 to 30 June 2001 and then released due to the absence of evidence against him. As a consequence of these activities the applicant was dismissed from his job but he continued to participate in the political activities. The police commenced an investigation in June 2002 which resulted in the applicant fleeing to Australia.
Litigation history
A brief summary of the litigation history for this applicant is as follows:
a)On 19 January 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth).
b)On 7 May 2004 the applicant attended a directions hearing and by Consent Orders he agreed to file and serve an amended application giving full particulars of each ground of review relied upon by 29 July 2004.
c)On 8 September 2004 the respondent solicitors wrote to the Court Registry requesting that the matter be listed for hearing in the Non Compliance List as the orders of 7 May 2004 had not been complied with.
d)The matter was listed for hearing in the Court’s Non Compliance List before me on 2 November 2004.
e)On 2 November 2004 by consent the Court ordered that firstly the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 16 November 2004 and secondly, if the applicant did not comply with the first order the matter stands dismissed with costs on the basis of non compliance with the orders of the Court.
f)On 16 November 2004 the applicant filed an amended application.
g)On 23 November 2004 the respondent solicitors wrote to the Registry requesting that a declaration be made by the Court that the applicant had not complied with the first order made by the Court on 2 November 2004 or alternatively to re-list the matter in the Non Compliance List.
h)The Court Registry re-listed the matter in the Court Non Compliance List before 7 December 2004.
The applicant’s review of the Tribunal’s decision
The original application filed on 19 January 2004 contained the following grounds:
“1.The Tribunal member [name] not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.
2.I really fear the persecution from my original country, P R China.
3.. The persecution is for the reason of a particular political opinion. I was a hotel manager, and I joined the political group organized by my friends and participated in its activities. I was detained from 28 May to 30 June. Later, I was dismissed from my job. I resumed his political activities. The police commenced another investigation in June 2002. After I arrived in Australia I rang my wife and she advised me that the police had begun to question her, and I was regarded as the key member of the anti-government organization.” (Errors included)
The amended application filed on 16 November 2004 contained the following grounds:
“1.The Tribunal member [name] did not consider the information which is in my favour.
2.I meet the refugee criteria because I would be jailed if I returned to my original country – P R China. The Chinese government will put me into jail because they regarded me as the key member of the anti-government organization.”
No other supporting material particularising the grounds has been filed. The applicant has participated in the Tribunal’s Pilot Legal Advice Scheme (NSW). A consultation took place and advice was given during that conference. The applicant appeared before me as recently as 2 November 2004 and was assisted by a Mandarin interpreter. At that time the importance in respect to the filing of these documents in accordance with the orders was discussed.
Reasons
The applicant in these proceedings is self represented and is dependent upon a Mandarin interpreter. The applicant has also attended Court when requested to do so. He has also demonstrated to a limit extent an attempt to comply with the Court orders. In particular to the orders that were made on 2 November 2004. When he was before me on that occasion I endeavoured to convey to the applicant that he must comply with the orders if he intended to pursue the matter further. I indicated to the applicant that the role of this Court was limited to a review of the Tribunal’s decision and any jurisdictional error made by that body in the decision making process.
I am acutely aware of the problem faced by the self represented litigant in attempting to articulate a claim to this Court in a language and jurisdiction which is foreign to him. However, this application as presently pleaded is devoid of merit and will not succeed in its current form. I believe that the applicant has been provided with ample opportunity to lodge a claim in the appropriate form should a claim exist. On a fair reading of the Tribunal’s decision, the Tribunal member appears to have discharged his responsibility correctly and within his powers granted under the Act.
Conclusion
Based on the material before me and a fair reading of the Tribunal’s decision, I intend to uphold the respondent’s Motion and dismiss the applicant’s substantive application on the grounds that the applicant has failed to comply with the orders made by this Court on 2 November 2004.
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 eleven (11) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 7 December 2004
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