SZDYE v Minister for Immigration
[2005] FMCA 134
•1 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDYE v MINISTER FOR IMMIGRATION | [2005] FMCA 134 |
| MIGRATION – Applicant failed to comply with orders of Registrar concerning filing of amended application – no arguable case of jurisdictional error on part of Refugee Review Tribunal – application dismissed. |
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth)
| Applicant: | SZDYE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1974 of 2004 |
| Delivered on: | 1 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 1 February 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 Notice of Motion is upheld and the substantive application is dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders 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 $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1974 of 2004
| SZDYE |
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. 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 also been prepared, filed and served.
As the substantive hearing in the matter has been listed for hearing on 22 June 2005 and there are serious deficiencies in the proceedings in that there had been orders to file amended pleadings and these orders have not been complied with, I believe it is 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 for orders that the proceedings be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with Court orders. 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 28 June 2004.
For the purpose of this Motion the respondent tendered and applied for an affidavit of Catherine Jane Gray sworn on 31 January 2005 (“the affidavit of Ms Gray”) to be admitted into evidence. A Court Book (“CB”) prepared by the respondent’s solicitors was filed and served on 29 September 2004.
Background
The applicant is a citizen of the People’s Republic of China. He arrived in Australia as a visitor in November 2002 and on
28 November 2002 lodged an application for a protection (Class XA) visa with the Department Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 10 December 2002 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant the application. The applicant lodged an application for a review of the delegate’s decision with the Refugee Review Tribunal (“the Tribunal”) on 14 October 2003.
In a statement accompanying the applicant’s original visa application, he stated that he was a genuine Falun Gong practitioner. He claimed that in April 2001, when he refused to write pledges and letters denouncing Falun Gong, he was sent to a “brain washing class”. The applicant stated that his wife had died in a car accident when she was on her way to visit him in detention. He said that since May 2001 his family had travelled to Beijing to “appeal for Dafa”. The applicant claimed that subsequently his father had been sentenced to two years imprisonment and his mother was missing. He claimed he had been detained in a labour camp and then released in October 2001. The applicant also stated that one of his former classmates was a Government official and had helped him bribe another officer to issue the applicant with a passport.
Litigation history
A brief summary of the litigation history in the proceedings is as follows:
a)
The applicant’s last recorded arrival in Australia was
20 November 2002. He lodged an application for a protection (Class XA) visa on 28 November 2002 which was subsequently refused by a delegate on 10 December 2002.
b)The applicant lodged an application for review with the Tribunal on 14 October 2003.
c)The Tribunal affirmed the delegate’s decision not to grant a protection visa on 5 May 2004. The decision was handed down on 27 May 2004.
d)An application for review by the Federal Magistrates Court was filed on 28 June 2004.
e)At a directions hearing before a Registrar on 1 October 2004 the applicant signed Consent Orders requiring him to file and serve an amended application giving particulars of each ground of review being relied upon by the applicant in his application to this Court and any evidence upon which the applicant proposed to rely by 12 November 2004.
f)On 19 November 2004 correspondence was sent to the applicant by the respondent’s solicitor notifying him that the respondent intended to list the matter in a non-compliance list for summary dismissal.
g)On 24 November 2004 correspondence was sent to the applicant by the respondent’s solicitor notifying him of the time, date and location of hearing of the respondent’s application for summary dismissal.
Grounds of review
On 28 June 2004 the applicant filed an application made under s.39B of the Judiciary Act 1903 (Cth) seeking a review of the Tribunal’s decision which contained the following grounds:
“1.I believe that I meet the refugee criteria.
2.I was arrested by Chinese Government as I am a member of the Falun Gong.
3.I face a risk of being persecuted by Chinese Government.”
Respondent’s submissions
The solicitor for the respondent, Ms J Bautista, informed the Court that the applicant attended a directions hearing on 1 October 2004 before Registrar McIllhatton and had the assistance of a Mandarin interpreter. On that occasion the applicant was given the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) however the applicant declined. At the directions hearing, the applicant signed Consent Orders agreeing to file and serve an amended application giving complete particulars of each ground of review being relied upon by the application in his application to the Court and any evidence upon which the applicant proposed to rely by 12 November 2004.
A further order made at the directions hearing stated that if the applicant failed to file an amended application in accordance with the Consent Orders, the respondent may request the Registry to list the matter in a non-compliance list before a Federal Magistrate with the intention of applying for summary dismissal due to non-compliance with the orders of the Court. This was explained to the applicant by the respondent’s solicitor and aided by the interpreter, before appearing before the Registrar. The applicant failed to file an amended application and consequently the matter was listed for a non-compliance hearing.
The respondent sought to have the substantive application dismissed on the basis that the applicant has failed to comply with the Court order that he file an amended application identifying grounds of review to be relied upon at the final hearing. The initial pleadings disclose no grounds that identify a jurisdictional error made by the Tribunal in its decision of 5 May 2004 and, despite being provided with the opportunity to remedy this deficiency, the applicant has failed to comply with the orders of the Court.
Reasons
When the applicant was invited to make submissions to the Court in response to the Motion, he indicated that there were documents relevant to his case evidencing his apprehension and incarceration because of his Falun Gong practice and beliefs in China. However, when questioned as to what steps had been taken by the applicant to obtain these documents, he indicated that they were not available as they would not be released by the Chinese Government.
The Tribunal member notes in its decision that the applicant was invited by letter dated 27 February 2004 to attend a Tribunal hearing to give oral evidence and present argument in support of his claims. The letter indicated that the Tribunal was unable to make a decision in his favour based on the material before it and accordingly invited the applicant to attend a hearing on 7 April 2004 to give evidence. The applicant was advised that if he failed to attend the scheduled hearing and did not contact the Tribunal to seek a postponement of the hearing, the Tribunal might make a decision on his case without further notice. A copy of the letter of invitation was also sent to the applicant’s representative. The applicant did not attend the Tribunal hearing and did not contact the Tribunal. Consequently, the Tribunal proceeded to make its decision based on the brief typed statement attached to the applicant’s original visa application together with the country information that the Tribunal had access to.
The application for review by this Court as reproduced above does not contain any grounds of review of the Tribunal’s decision. I am cognisant of the fact that the self represented litigant is at a severe disadvantage when endeavouring to articulate his claim in a foreign language and jurisdiction. However, the applicant has been represented by a migration agent during this process.
The applicant has also been offered the opportunity to participate in the RRT Pilot Legal Advice Scheme (NSW) but declined the offer. The availability of this Scheme was explained to the applicant prior to the directions hearing by the respondent’s solicitor with the aid of an interpreter. The receipt of this advice was acknowledged by the applicant by the evidence of his signature on the cover sheet attached to the material provided to him on the day of the directions hearing.
I am satisfied that the requirements of the Court had been explained to the applicant and assistance offered, but declined. The application for review by this Court does not disclose any grounds of review and the opportunity to remedy this situation has not been complied with. It is acknowledged that the applicant does attend the Court when required. However, that appears to be the limit of his involvement or commitment to the prosecution of his case.
Conclusion
I uphold the respondent’s application and dismiss the substantive application on the grounds that the applicant has failed to comply with the orders of the Court.
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 sixteen (16) 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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