SZDPJ v Minister for Immigration - [2005] FMCA 198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPJ v MINISTER FOR IMMIGRATION

[2005] FMCA 198

MIGRATION – RRT decision – claims made by Coptic Christian mother and son – application to court by minor alone – no grounds for judicial review – adjournment application refused – no costs order made.

SFTB v Minister for Immigration (2003) 129 FCR 222

Applicant:

SZDPJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1499 of 2004

Delivered on:

18 February 2005

Delivered at:

Sydney

Hearing date:

18 February 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

The applicant’s litigation guardian in person.

Counsel for the Respondent:

Mr D Jordan.

Solicitors for the Respondent:

Blake Dawson Waldron.

ORDERS

Adjournment application refused.
Application dismissed.
No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1499 of 2004

SZDPJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Reasons given for refusing adjournment application

In this matter, proceedings were commenced in the Court on 20 May 2004 seeking judicial review of a decision made by the Refugee Review Tribunal nearly four years earlier, on 13 July 2000. The Tribunal's decision followed an extensive process of decision making on two applications for refugee visas which were lodged by a mother and her son, who was 10 years old at the time when the visa applications were made on 11 November 1998. The present proceedings seek to set aside only the Tribunal’s decision in relation to both visa applications, but are brought by or on behalf of the son alone.
The visa application relied on an account by the mother of being harassed by somebody she thought was a Muslim terrorist seeking to, among other things, kidnap her son. She also relied on general conditions affecting people of the Coptic religion or ethnic group in Egypt, affecting her and her son.
Very extensive material was presented to the delegate, and then to the Tribunal by a migration agent on behalf of the applicants. It is unclear to me if all the material addressed by decision makers has been reproduced in the court books before the Court, but they occupy some 800 odd pages.
The Tribunal wrote what appears to me to be a careful discussion of the claims and, essentially, found that the story of being harassed by the Muslim terrorist was untrue. It found that it was "fanciful, far-fetched and inherently implausible" for reasons that I will not examine here.
The Tribunal also thought that claims of discrimination against Coptic Egyptians, in so far as they related to this particular family, were not of sufficient gravity to be considered persecution.
There is no arguable error that I can see in the reasons of the Tribunal, and as I have indicated they read as a well balanced assessment of the evidence which was before it.
The application that was filed in this Court was not accompanied by any affidavit explaining the delay in commencing this proceeding. Before me today the Minister is unable to explain the delay to me, and is unable to tell me whether other litigation has ever been brought in relation to the Tribunal decision. In the absence of evidence explaining the delay, I think the Court has good reasons for concluding that the delay was unwarranted, and that the proceedings should be dismissed just because of the delay.
The application was filed by a solicitor who identified the boy's name as the sole applicant, and has written next to it: "by his best friend S…H…." This is not the name of the boy's mother, and there is no evidence before me as to the present location or whereabouts of the boy's mother, whether in Australia or outside. SH at that time was not properly appointed as litigation guardian under the Rules of the Federal Magistrates’ Court, because they require a verified consent to be filed by the proposed litigation guardian (see r.11.11(2)). However, the proceedings were not incompetent in the absence of a litigation guardian (see: SFTB v Minister for Immigration (2003) 129 FCR 222), and no point was ever taken by the Minister as to the proper constitution of the proceeding.
SH has appeared before me today and has identified herself as the boy's aunt, and as the person who originally instructed the solicitors to file the application. She executed in Court a consent to being appointed as the litigation guardian in the proceedings, and this is on the file. I shall return to what she said in a minute. The applicant himself did not attend court.
The original application filed by the solicitors also did not identify any proper ground for judicial review of the Tribunal decision. It made three general allegations which have no apparent substance or meaning.
The application came before a Registrar in the Court on 26 August 2004, when the applicant was represented by a solicitor whose name I find illegible, acting as agent for the solicitors on the record. That representative consented to orders requiring the applicant to file an amended application with particulars by 7 October 2004 and written submissions 14 days before a hearing which was set down for today.
According to the Court file as a result of threats of compliance action on the part of the Minister the solicitors on the record, Simon Diab and Associates, filed on 26 October 2004 a document headed “Amended Application”, which also showed the applicant appearing “by his best friend, S…H…”, but without a consent.
The amended grounds for review are on their face unsustainable. There is an allegation that the Tribunal ignored the applicant's claim that he “suffered religious persecution in Egypt for being a member of Coptic Christian”. A simple reading of the Tribunal’s reasons shows that this allegation is unsustainable. The Tribunal undoubtedly identified his claims and addressed them under the heading “Discrimination against Coptic Christians” at page 18 of its reasons.
The amended application also alleges: that there was no evidence or other material to justify the making of the decision; that the decision involved an error of law; and that the decision was an improper exercise of power. However, no particulars are given for any of these allegations, and on my reading of the Tribunal's decision they have no substance.
Ground 2 of the amended application alleges that the Tribunal “made a jurisdictional error by misdirecting itself, and failing to take into consideration the submitted evidence.” However, the particulars of these allegations (if they can be so characterised), in my opinion merely take issue with the factual assessments arrived at by the Tribunal.
Simon Diab and Associates did not file any written submission in support of the application 14 days before the listed hearing date, but on that day they filed a Notice of ceasing to act. They did not file an affidavit verifying that the applicant had been served with the notice as is required under rule 9.03(2) and (3). However, someone in the Court's registry has written at the top of the document: "solicitor confirmed by phone that notice of intention served more than 10 days ago." SH today has not satisfied me that this did not happen.
SH appeared today and for the first time (apart from a telephone call to my Chambers at five o'clock yesterday), requested that the Court should adjourn the proceedings listed for today. She tells me that she wants more time to find a new lawyer. She claims that Simon Diab and Associates ceased to act because she could not fully fund them in the litigation. She says she has approached one solicitor who says he needed time to look at the papers. She said she went to the Legal Aid Commission and they said the same thing. She has not been precise in the dates on which she said these things happened.
I asked her whether she could point to any merits in the case and understandably she was unable to do so. I am not even sure that she can understand what the Court case is about. However, plainly she is anxious to gain as much time as she can for her nephew to continue in Australia and to try and get a visa, and I can understand that motivation. I shall assume that there may be hardship if the matter is heard and decided against the applicant today.
However, my sympathy for SH and for her nephew is not sufficient for me to grant an adjournment in the circumstances sketched above. It appears to me that from their inception the proceedings have had no prospect of success. As a result of having spent several hours this morning looking at the papers I can see no prospects of success in the proceedings if they were adjourned. SH in my opinion has had more than enough time to find lawyers who could find a good argument. She has already engaged solicitors who have purported, but failed, to comply with directions of the Court directed at identifying and focusing arguable grounds of review. Those solicitors were unable to find good grounds and I cannot see any prospects of any other solicitor or barrister doing this.
I can see no purpose in granting an adjournment in the present situation, and do not consider that good grounds warranting an adjournment as an indulgence of the Court have been shown. For these reasons I refuse to adjourn the proceedings, and I propose to proceed with a hearing today.
RECORDED : NOT TRANSCRIBED

Reasons given for dismissing application

This is a further judgment in this matter. I have this morning already delivered reasons for refusing an adjournment application made by the litigation guardian for the applicant. In that judgment I sufficiently indicated the background to the case and its apparent lack of merit.
After refusing the adjournment I invited SH to address me on any arguments that she felt were appropriate. She indicated that she was not able to identify a legal defect in the Tribunal's decision.
She contended that she believed that her nephew had been brought to Australia and left with her by his mother because of a fear that he would be kidnapped and because it was thought he was suffering psychological disabilities in his school back in Egypt. She says that she has been paying his fees to get a Catholic education in Australia, does not know what he would do back in Egypt, and fears for that situation.
These are matters which may go to a humanitarian case for finding a ground for residence in Australia, but as I have explained to SH it is not the function of the Court in a review of a decision of the Refugee Review Tribunal to address such a case. Nothing that SH has said to me following my earlier judgment causes me to alter my opinion that no arguable ground for judicial review has been identified in the present matter, and I therefore dismiss the application.
RECORDED : NOT TRANSCRIBED
The Minister seeks an order in her favour for costs in the sum of $4500 which would bind both the applicant and his aunt. However, the Minister did not previously take issue with the apparent absence of a proper appointment of a litigation guardian and, in particular, the absence of a proper consent by SH. Her written consent signed today was obtained by me purely to clarify her status in the proceedings, and to ensure that she accepted responsibility for their outcome.
I am not prepared to make a cost order against a minor or SH in circumstances where the proceedings were not properly constituted prior to their being brought to hearing. I propose to follow the approach taken in the Full Court in SFTB (supra) and to make no order as to costs in the proceedings.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 1 March 2005