SZDYH v Minister for Immigration
[2004] FMCA 1079
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDYH v MINISTER FOR IMMIGRATION | [2004] FMCA 1079 |
| MIGRATION – Review of Refugee Review Tribunal decision – 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
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
Federal Court Rules
Herijanto v Refugee Review Tribunal [2000] HCA 49
Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601
R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565
Minister for Immigration & Multicultural & Indigenous Affairs v Kord (2002) 125 FCR 68
Prahastono v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 77 FCR 260
SZBQV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1242
A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545
NABE (No 2) v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
S1174/2002 v Refugee Review Tribunal [2004] FCA 289
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
| Applicant: | SZDYH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1979 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing dates: | 20 December 2004 & 22 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr G T Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed due to non compliance with the orders of 1 September 2004.
The application is dismissed due to the unwarranted delay for the periods 29 January 1998 to 10 September 1998 and 20 February 2004 to 28 June 2004.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1979 of 2004
| SZDYH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court as a Notice of Motion seeking that the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth). Both parties have filed written submissions in response to this matter being listed for hearing of the Motion. I believed it was in both parties’ interest to know with some certainty the future 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
This is a Motion brought by the respondent in the proceedings seeking orders from the Court that the proceedings be dismissed on the ground of non compliance with directions of the Court made on 1 September 2004. On that date the applicant appeared at a directions hearing before Registrar Kavallaris where Short Minutes of Orders were consented to by the legal representatives of both the applicant and the respondent.
The relevant orders were:
“2.The applicant file and serve an amended application, giving complete particulars of each ground of review being relied on, and any additional affidavit evidence, by 29 October 2004.
3.If an amended application is not filed in accordance with paragraph 2 above, the respondent may request that the registry list the matter in a non-compliance list before the Federal Magistrate with the intention of applying for summary dismissal due to non-compliance with a direction of the Court. The respondent is to advise the applicant of the time, date and place of that listing.”
Order 2 was not complied with and the respondent requested that the matter be re-listed in a non compliance list on 20 December 2004. The substantive 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 purposes of this Motion, the respondent tendered and applied for an affidavit of Andrew John Crockett sworn on 21 December 2004 (“the affidavit of Mr Crockett”) to be admitted into evidence. A Court Book (“CB”) prepared by the respondent’s solicitors was filed and served on 15 September 2004.
Applicant’s background
The applicant, who is a citizen of Indonesia, arrived in Australia on
9 January 1997. On 21 March 1997 she lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 28 May 1997 a delegate of the respondent (“the delegate”) refused to grant the applicant a protection visa. This was notified to the applicant in a letter dated 29 May 1997. On 11 June 1997 the applicant sought a review by the Refugee Review Tribunal (“the Tribunal”) of the delegate’s decision (CB p.47).
The applicant is a single, Indonesian woman of Chinese descent who was born on 4 February 1968. She claims her usual occupation is “bookkeeper”. The applicant completed twelve years of schooling at the Methodist School in M.T. Hariyono. She worked for one company in Jaja Harapan as a bookkeeper for ten years prior to travelling to Australia. The applicant has no siblings and her parents continue to reside in Indonesia.
The applicant claims to have suffered some general discrimination in Indonesia because of her Chinese ethnicity. In her written submissions she claimed she was subjected to various acts of discrimination and bullying during her school years. In 1997 the applicant commenced work as a bookkeeper and claimed that although she worked hard she was passed over from promotion many times in favour of native Indonesians.
The applicant told the Tribunal she had fears of returning to Indonesia because she was a Christian and there had been several incidents in which Christian churches had been burnt during riots. The applicant does not claim to have ever been involved in any of these incidents but stated they had instilled in her a general fear (CB p.49).
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 21 March 1997;
b)The application was rejected by the delegate on 28 May 1997. The applicant was advised of the delegate’s decision by letter dated 29 May 1997;
c)The applicant sought a review of the delegate’s decision by the Tribunal on 11 June 1997;
d)The Tribunal affirmed the delegate’s decision not to grant a protection visa on 27 January 1998;
e)
On 10 September 1998 the applicant joined the Herijanto v Refugee Review Tribunal (“Herijanto”) class action. This class action later became part of the Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (“Muin / Lie”) class action. Pursuant to orders of Gaudron J of the High Court of Australia (“the High Court”) on 25 November 2002, on
29 May 2003, the applicant through her solicitors, Adrian Joel & Co, filed an affidavit annexing a draft order nisi in the Sydney Registry of the High Court. The draft order nisi sought writs in respect of the Tribunal’s decision made on 27 January 1998.
f)Pursuant to the orders of Gaudron J, the proceedings referred to in paragraph (e) above, were remitted instanter to the NSW District Registry of the Federal Court. The remitted proceedings were given the Federal Court File No: N1849 of 2003.
g)On 20 February 2004 Emmett J made orders that Order 51A rule 5(1) of the Federal Court Rules did not apply and refused the application for an order nisi.
h)On 28 June 2004 the applicant filed an application for a review of the Tribunal’s decision.
Hearing
The Motion was originally listed before me on 20 December 2004. On that occasion, Mr G T Johnson of Counsel, appearing for the respondent, filed an application that the matter be dismissed due to the unwarranted delay between the time of the Tribunal decision of
27 January 1998 and the filing of these current proceedings on 28 June 2004. Further, that the matter be dismissed on the grounds of non compliance with the orders of the Court made on 1 September 2004 particularly as the applicant did not act within the time limits set out in that order and ultimately no submissions were filed which formulated any arguable jurisdictional error.
During the course of the applicant’s submissions from the bar table, I asked the applicant whether she had filed any application in previous proceedings in any Court. The applicant responded in the negative. At the completion of the submissions by the respective parties I made orders upholding the respondent’s application to dismiss the applicant’s substantive matter on the grounds of non compliance with orders made on 1 September 2004 and secondly due to unwarranted delay in the filing of this application.
Subsequent to the hearing, my associate was contacted by a representative of the respondent’s solicitors indicating that it had come to their attention that the applicant was a former member of the Muin / Lie class action and had subsequently brought an application in her own name. This was at variance to the submissions made by the respondent and to the arguments that had been made by the parties at the hearing on 20 December 2004. The respondent’s solicitors accordingly requested that the matter be re-listed in order for the parties to address the Court for the Court to consider whether, in light of this information, the orders that had been made were appropriate.
The matter was re-listed for 22 December 2004 for a hearing of further submissions. The respondent’s solicitors filed the affidavit of Mr Crockett setting out information in respect of the applicant’s participation in the Muin / Lie class action and the subsequent application on her own behalf.
Respondent’s application
Mr G T Johnson of Counsel, appearing for the respondent, filed written submissions on 14 December 2004 and supplemented these by oral submissions at the hearing on 20 December 2004. I will deal with those submissions first and then refer to the supplementary submissions made on 22 December 2004.
It is submitted that unwarrantable delay would allow the Court to dismiss the application on discretionary grounds, regardless of whether there is jurisdictional error and without the Court being required to consider the substantive merits of the application: R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (“Fowler”) at 570 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ. Orders made at the directions hearing on 1 September 2004, requiring the applicant to file and serve an amended application and any additional affidavit material by 29 October 2004 and to file and serve written submissions fourteen days prior to the hearing date have not been complied with. It was submitted that r.13.03 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) enables the Court, upon the application of a party or upon its own motion to dismiss the proceeding in such circumstances, and that this was a further basis upon which the present proceeding could be dismissed. It was also submitted that the application should be dismissed with costs without consideration of its merits.
Counsel for the respondent submitted that in the event the Court does come to consider the merits of the application, there is no jurisdictional error in the Tribunal’s decision. It was submitted the decision turned entirely upon factual findings within the Tribunal’s domain, based mainly upon the country information to which it referred. The applicant is a national of Indonesia, who claimed to fear persecution on the grounds of her race (Chinese) and religion (Christian). It was submitted that she made no claims before the Tribunal of having personally suffered harm for either reason in the past, save for claims of taunting and employment discrimination which the Tribunal found, as matter of fact, to be harm that was insufficiently serious to amount to “persecution” (CB pp.52-53). It was submitted that the Tribunal also found the discrimination generally faced by the Chinese community in Indonesia to be insufficiently serious to amount to “persecution” (CB p.51.9). Counsel contended that whether particular harm is so serious as to amount to “persecution” is of course a question of fact for the Tribunal: Minister for Immigration & Multicultural & Indigenous Affairs v Kord at [3]; Prahastono v Minister for Immigration & Multicultural & Indigenous Affairs at 271 per Hill J; SZBQV v Minister for Immigration & Multicultural & Indigenous Affairs at [29] and [33] per Jacobson J.
The Tribunal noted that the applicant claimed fear that she may be harmed in rioting aimed at Christian churches (CB p.49.9) or against Chinese (CB p.51.9), but found that the applicant had not provided evidence suggesting that she was herself involved in, or personally affected by, these riots beyond having a general fear (CB p.49.9; CB pp.51.9-52.1). It was submitted that the Tribunal was not satisfied that the risk of the applicant being harmed in such disturbances was sufficiently serious to give rise to a well-founded fear of persecution (CB pp.52.4; 53.2). Again, Counsel contended it was a question of fact that was open to the Tribunal.
Counsel submitted that although the Tribunal’s findings expressly refer to anti-Chinese rioting rather than anti-Christian rioting (CB pp.51-52), the Tribunal rejected both limbs of the applicant’s claim: see A v Minister for Immigration & Multicultural Affairs per French, Merkel and Finkelstein JJ at 557. The applicant’s claims did not refer to discrete harm as a Christian, but rather she said that “Chinese ethnic people are often harassed in life for both religious and racial reasons” (CB p.38.5). It was submitted that the Tribunal, having referred to applicant’s claims based upon religion (CB p.49.9) and ethnicity (CB p.49.2 and following), referred specifically to the applicant’s fear of being harmed in rioting. The Tribunal examined the issue of communal violence and saw the targeting of Chinese and the targeting of Christian churches as part of the same phenomenon (CB pp.50-51). In the circumstances, it is submitted, this ought not be seen as a case where the Tribunal failed to consider a claim advanced by an applicant (in the sense discussed in NABE (No 2) v Minister for Immigration & Multicultural & Indigenous Affairs at [55]-[63]; Dranichnikov v Minister for Immigration & Multicultural Affairs).
When the matter was re-listed on 22 December 2004, Counsel for the respondent drew my attention to the decision of Emmett J in S1174/2002 v Refugee Review Tribunal. This was a decision that dealt with a considerable number of applicants and of which applicant SZDYH was one. The relevant part of the decision for the present purposes are [28] and [29]:
“[28] The first possible prejudice adverted to was the suggestion that, the applicant, if an order nisi were refused at this stage, would be barred from relief by the principles of res judicata, issue estoppel or Anshun estoppel …, even if he were subsequently able to demonstrate an arguable case. I do not see any substance in that expressed concern. An order refusing an order nisi is clearly an interlocutory order. As such it would not found any bar or estoppel against appropriate relief if grounds are established. Further, the Minister has assured the Court that there would be no submission made on behalf of the Minister, in relation to this application or any of the other applicants presently before me, that the refusal of an order nisi would constituted a bar to the commencement of a fresh proceeding claiming the same relief.
[29] The second possible matter of prejudice was a concern that delay might be advanced as an answer to any claim for relief. The Minister has assured the Court that she will not make a submission in any future proceeding that there is no satisfactory explanation for the applicant’s delay, from the time when the applicant was joined as a representative party in the High Court, to the time of refusal of an order nisi. Any delay from the time of the making of a decision by the Tribunal and the joinder of the applicant in the High Court proceeding would still remain to be explained, so would any delay from the time of refusal of an order nisi until the commencement of any fresh proceeding.” (Emphasis added)
The effect of this decision which incorporates undertakings of the Minister, is that the applicant is protected from any claim of delay between the time she joined the Muin / Lie action, until the time of the order refusing the order nisi ordered by Emmett J. However, the applicant still is exposed for the period from the handing down of the Tribunal’s decision until she joined the class action and secondly, from the date of the decision of Emmett J, until the commencement of the proceedings currently under consideration. The relevant chronology of the four important dates are as follows:
a)The Tribunal decision was handed down on 27 January 1998 and the applicant joined the Herijanto class action (subsequently Muin / Lie) on 10 September 1998, constituting a period of delay of seven and a half months.
b)Emmett J’s order was made on 20 April 2004 and the present proceedings were commenced on 28 June 2004. That represents a period of delay of four months and one week.
The respondent’s submission is that in the absence of any acceptable explanation, that delay warrants dismissal of the proceedings. In the circumstances of this case, the Notice of Objection to Competency which was filed on 9 July 2004 is not pressed. The respondent submits that the applicant’s overall delay is such to enable the dismissal of the application on entirely discretionary grounds because the nature of the relief claimed is such that the Court always has a discretion whether to entertain and whether to grant relief: M211 of 2003 v Refugee Review Tribunal at [16] the Full Court refers to the decision of McHugh J in Re Commonwealth of Australia; Ex parte Marks:
“A ‘case would need to be exceptional’ before the time for commencing proceedings was enlarged by many months.”
When the Court is faced with an enlargement of time of the application, the relevant considerations that it must take into account is the explanation for the delay and the prospects of success of the substantive issue: Fowler.
In Ex parte Marks, McHugh J states at [17]:
“An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant’s search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.”
It was submitted that this was not an application for enlargement of time, but if this matter was put to the High Court after some eight and a half months, the applicant would have great difficulty in obtaining an enlargement of time especially where there was no satisfactory explanation for the delay and where the applicant does not present to the Court a formulation of jurisdictional error which raises a real and arguable case in respect of the particular Tribunal decision.
Applicant’s submissions
The applicant is a self represented litigant appearing with the assistance of an interpreter. The applicant filed written submissions on
14 December 2004. This document unfortunately does not address the issues which are the subject of the Motion before the Court today or the substantive application. The most appropriate description is a narrative which restates the applicant’s evidence and sets out details of her experiences from childhood until she departed from Indonesia to Australia. Attached to the submissions is a list of news articles and reports of atrocities committed against members of the ethnic Chinese minority in Indonesia which appeared in various international news and human rights publications. The vast majority of these articles were published in 1998 covering the period May to October. The effect of the contents of this document is to seek a merits review of the material before the delegate and the Tribunal. The submission makes no reference to jurisdictional error contained in the Tribunal’s decision.
When the applicant was invited to make any oral submissions, she indicated that during the period that she had retained Adrian Joel as part of the Muin / Lie application she had provided all of her material and any subsequent correspondence to Mr Joel. The applicant was not clear as to the relevant dates Mr Joel was retained and subsequently ceased to act on her behalf. There was also a brief period during 2004 when the applicant had retained the solicitor, Edmund Cheung Teng. Mr Teng appeared at the directions hearing on 1 September 2004 and filed a Notice of Discontinuance on 11 November 2004. The applicant was unable to supply any details of the involvement of Mr Teng as her legal adviser. This may be partly due to the fact that at that time a friend was assisting the applicant and it may have been the friend who had retained Mr Teng. However, that could not be ascertained from the applicant during the hearing.
Conclusion
In determining this Motion, I have considered three issues being the two periods of unexplained delay in the filing of proceedings, the contents of the initial pleadings together with the failure to file in the pleadings as directed by the Court and finally, the decision of the Tribunal to determine whether any jurisdictional errors were evident on its face in the absence of pleadings identifying any issue. Mr Johnson of Counsel for the respondent provided very helpful written and oral submissions which have greatly assisted me in the determination of this matter.
I also thank Mr Johnson and his instructing solicitors for reviewing the Departmental files to locate the documentation detailing the applicant’s involvement in the Muin / Lie class action. At the initial hearing when I was encouraging the applicant to make some submissions to the Court in support of her position she had indicated that she had been a client of Mr Adrian Joel, Solicitor which prompted me to enquire whether she had been involved in the class action but the applicant strongly denied she had any involvement in those proceedings. When this suspicion was aroused by my questions, the respondent’s solicitors carried out enquiries and have assisted the Court in rectifying any misunderstanding in relation to the applicant’s involvement in the class action.
With the assistance of the submissions by Mr Johnson, I am satisfied that the two periods of delay in the sequence of these proceedings are unexplained. The applicant has failed to comply with the directions of this Court by not filing an amended application in the substantive proceedings. Finally, on a fair reading of the Tribunal’s decision, there is no apparent jurisdictional error. Consequently, I believe that the Motion should be upheld and the substantive proceedings 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 thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 17 February 2005
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