SZCOZ v Minister for Immigration & Anor
[2005] FMCA 1907
•5 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOZ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1907 |
| MIGRATION – RRT decision – Indian claimed political persecution – declined invitation to hearing – no error in Tribunal deciding application before appointed hearing – previous judicial review application failed at interlocutory stage – discretionary reasons for dismissing new judicial review application. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425(2)(b), 425A(4), 426A, 426A(1), 477(1A), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
NBHP v Minister for Immigration [2005] FMCA 998
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZCOZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 175
SZCOZ v Minister for Immigration [2004] FMCA 914
| Applicant: | SZCOZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2729 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 5 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 14 January 2004 reference N03/47471 or for review of the decision of the delegate of the first respondent dated 15 September 2003 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2729 of 2005
| SZCOZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 26 September 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 December 2003 and handed down on 14 January 2004. The Tribunal affirmed a decision of a delegate made on 15 September 2003, which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court’s jurisdiction in relation to migration decisions. However, these amendments apply only to proceedings commenced on or after 1 December 2005 and the repeal does not prevent the continuing of the current proceedings (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8, including a time limit under s.477(1A), which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476).
The Court has a discretion to refuse relief even where jurisdictional error is found. This allows the Court to refuse relief where the delay in commencing the proceeding is unwarranted, or there is conduct by an applicant which the Court considers inconsistent with the grant of relief (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80]). The exercise of this discretion arises in the present case, due to a history of previous litigation which the applicant has engaged in, to which I shall refer below.
The applicant’s application was listed at a first court date conducted on 26 October 2005. I then directed that it be set down for a final hearing today and that the court book in previous proceedings should be received as the court book in the present proceeding. The applicant had the opportunity of obtaining legal advice in the course of that earlier proceeding, and has had sufficient notice of today’s hearing to prepare his arguments.
The applicant is a national of India who arrived in Australia in June 2003. He applied for a protection visa on 21 July 2003 assisted by a migration agent, Mr Ajay Kumar. His visa application form contained claims which were summarised by the Tribunal:
In support of his claim to refugee status, the applicant stated that he supported the BJP party in Gujarat state and he was consequently targeted by political opponents of the BJP. He stated that during the last election campaign he was beaten by supporters of Congress I party. He stated that after the BJP candidate won the election, supporters of Congress I continued to threaten him and his family. The applicant stated that he came to Australia and members of his family “shifted to another place” (folio 9.2) to avoid harm. He stated that he could not be safe in another part of India because “the extremists groups of Congress I and its alliance parties are very strong and they can do whatever they want without the fear of local authorities or police” (folio 9.1).
A delegate refused the application on 15 September 2003. His reasons, which were posted to the applicant and his agent, described the applicant’s claims as being “extremely vague” and “provided no details whatsoever of facing any harm or mistreatment which would amount to persecution in Convention terms”. The applicant was therefore on clear notice that the Tribunal might regard the documents on the file as providing insufficient support for his claims.
An application for review was lodged with the Tribunal on 2 October 2003. This authorised the applicant’s agent, Mr Kumar, to act on his behalf in relation to the case and to receive correspondence. No further supporting information was given, but the Tribunal was asked: “please refer to above DIMIA file no. CLF2003/40328”. It was suggested “a detailed submission will be filed later”, but no such submission was ever filed.
On 5 December 2003 the applicant was sent a letter which informed him:
Your Application for Review
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
Hearing of the Tribunal
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
If you want to come to a hearing it will be on:
Date:
Wednesday, 21 January 2004
Time:
1:00 PM
Please arrive at least 15 minutes before the start of the hearing
Place:
Level 29, Pacific Power building, 201 Elizabeth Street, Sydney
Important information about your hearing
·
The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
·
If you have a passport you should bring it to the hearing.
“Response to Hearing Invitation” form
Please read and complete the enclosed form carefully and:
·tell us if you are coming to the hearing or not coming to the hearing
·complete the “Witnesses” part of the form if you want the Tribunal to get oral evidence from another person; please note the Tribunal does not have to get evidence from any person you name
·send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator
·answer all the other questions on the form and return the completed form and any new documents or written arguments by 23 December 2003.
We have enclosed a brochure that explains what will happen on the day of the hearing. You can also find more information about the Tribunal and its procedures on our website: you have any questions, you can contact SK on (02) 9xxx xxxx. If you are calling from outside Sydney phone 1800 xxx xxx. If you don’t speak English, please contact the Translating and Interpreting Service (TIS) on 131 xxx.
On 14 December 2003 the Tribunal received by facsimile from Mr Kumar a “Response to Hearing Invitation” which was signed by the applicant. In response to the prominent question: “do you want to come to a hearing?”, the response was given:
No, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The Tribunal said in its reasons that it took that course, and that “this matter has therefore been determined on the evidence available to the Tribunal”. This included the Department’s file. The Tribunal then handed down a decision without waiting until the hearing date which had been offered to the applicant.
In its brief reasons for affirming the delegate’s decision, the Tribunal said that “many questions regarding his previous and future circumstances remain unanswered”. The Tribunal referred to areas of uncertainty which led it to conclude:
The Tribunal cannot determine from the available information the nature of the applicant’s political opinion, how he expressed it in the past, and exactly how he intends to express it in the reasonably foreseeable future.
The Tribunal said also that it was unable to assess the applicant’s claim that he could not avoid harm by relocating, and considered that this was contrary to available information.
It concluded:
In the absence of further information, and in view of the above findings, the Tribunal does not accept that the applicant has a well‑founded fear of persecution in India for reasons of political opinion or any other Convention reasons.
The applicant then commenced his first proceeding in this Court. On 29 January 2004 he filed an application of the same nature as the present application. It asserted that the Tribunal had made a wrong decision and that there were errors of law, without giving substance to those contentions. The applicant was directed at a first court date to file an amended application, but did not comply with that direction in time. Nor did he appear before Driver FM at a non‑compliance hearing, and his application was dismissed on 6 September 2004. It does appear, however, that before that time the applicant had received advice under the free legal advice scheme, and had filed an amended application which took issue with the Tribunal’s conclusion about relocation.
The applicant applied to set aside the default order and this was considered by Driver FM on 1 December 2004 at a hearing at which the applicant appeared. His Honour refused that application (see SZCOZ v Minister for Immigration [2004] FMCA 914). His Honour was not persuaded that the applicant had advanced a sufficient explanation for his non‑attendance at the non‑compliance listing, but more importantly his Honour formed the view:
[7]I do not consider that the judicial review application as amended raises a serious issue to be tried. The amended application in my view is simply a dispute with the merits of the RRT decision.
The applicant on 21 December 2004 filed an application for leave to appeal to the Federal Court. This was addressed by Moore J on 18 February 2005, when his Honour dismissed the application (see SZCOZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 175). His Honour set out the history of the matter and referred to a draft notice of appeal which adopted a form having no apparent relevance to relevant issues. His Honour said:
[10]I have read the reasons for judgment of the Federal Magistrate and, on their face, they appear to involve a regular exercise of the discretionary power.
[11]I have read the salient parts of the Tribunal’s decision of 17 December 2003. That decision suggests that the Tribunal’s consideration of the applicant’s application for a protection visa was unexceptionable.
The applicant then applied to the High Court of Australia for special leave to appeal. On 8 September 2005 Hayne and Callinan JJ announced the Court’s reasons for refusing that application with 28 other applications which had adopted the same form of document. Their Honours said: “none of these applications would enjoy any prospect of success”.
Following a pattern which is apparent in the applicant’s history, he commenced a new matter within 28 days of his previous loss, thereby assisting him to obtain yet another bridging visa. This was the present application in this Court. It adopted a precedent which consists of a list of general heads of jurisdictional error without any thought as to their application to the present matter, and no meaningful particulars.
As I have indicated, I listed the matter for a final hearing today on an expedited basis. I took this course and discouraged an interlocutory application for summary dismissal, since it seemed desirable for the applicant’s arguments as to jurisdictional error to be dealt with finally on their merits.
In recent days the applicant has filed a written submission which makes a single contention, addressing the circumstances in which the Tribunal arrived at its decision without conducting a hearing. No contentions concerning this procedure have ever previously been raised by the applicant.
As I understand the argument presented in the submission, it is that the letter which I have set out above failed to comply with s.425A(4), which requires that a notice of invitation to appear “must contain a statement of the effect of section 426A”.
S.426A provides:
(1)If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
There are two difficulties facing the applicant’s contention that the present letter failed to comply with s.425A(4). The first is that, in my opinion, the letter did contain statements indicating the effect of s.426A. In particular, it informed the applicant that the Tribunal would have power to proceed to make a decision if he did not appear, and also that it had a discretion to reschedule a hearing which it might exercise if there was “good reasons”. Although the language of s.426A has not been adopted verbatim in the letter, plainly s.425A(4) does not require this, but it requires only a statement of “the effect” of s.426A. I consider that this letter did sufficiently give the effect of the provision.
A further, and more significant, difficulty facing this contention is that the Tribunal did not rely on s.426A(1) when proceeding to decide the application upon the material available to it, and as a matter of law it was not required to rely on that provision. For reasons which I have previously given in NBHP v Minister for Immigration [2005] FMCA 998 (“NBHP”) at [25]‑[44], the Tribunal was entitled to dispense with conducting a hearing where an applicant gave a consent “to the Tribunal deciding the review without the applicant appearing before it” (see s.425(2)(b)). For reasons which I gave in NBHP and to which I adhere, this power was available in circumstances such as the present, and did not require the Tribunal to wait until the hearing date which had been offered to the applicant. The Tribunal was not obliged to wait until after the appointed hearing date, so as to avail itself of the power which would then have arisen under s.426A(1), but could immediately act upon the applicant’s consent.
In his oral submissions to me today, the applicant made a further contention without providing any supportive affidavits or corroborative evidence. This was that his decision not to attend a hearing was made by him on the advice of his agent, and he now regretted making that decision. However, he did not contend that the Tribunal was aware of any circumstances which should have caused it to doubt that the response to hearing which it received was a communication made by the agent after proper consideration by the applicant and on his instructions. Assuming that the applicant did in fact have second thoughts about declining the invitation, the Tribunal’s decision to rely upon his response was not attended by any failure of procedure which could vitiate its decision.
The applicant’s final oral submission was that I should give him the chance to present himself to the Tribunal to persuade it to accept his refugee claims. However, as I have explained to him, I do not have that power in the absence of jurisdictional error, and for the reasons I have given above I have not found jurisdictional error affecting the Tribunal’s decision.
In view of that finding, it may strictly not be necessary for me to consider discretionary reasons for refusing relief. However, in my opinion, the history of litigation which I have recounted above provides a clear reason why the Court should not entertain further proceedings concerning the Tribunal’s decision.
The applicant has enjoyed the attention of four judicial officers looking at his matter before the commencement of the proceeding. It is clear that, at least, Driver FM and Moore J addressed for themselves the validity of the Tribunal’s decision, and neither of them found proper argument for setting it aside. In my opinion, in those circumstances the present application could be characterised as an abuse of process, and would appropriately be refused in the discretion of the Court.
I also consider that the documents used by the applicant in his history of litigation show that he is someone who is likely to continue to bring unmeritorious applications to the Court, and that it is appropriate for me to give a direction to this Court’s registry that no further application should be received in relation to decision‑making on his protection visa without prior leave of the Court.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 13 January 2006
3