SZDYK v Minister for Immigration
[2005] FMCA 650
•16 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDYK v MINISTER FOR IMMIGRATION | [2005] FMCA 650 |
| MIGRATION – Review of Refugee Review Tribunal decision – application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with Court orders. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZDYK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1987 of 2004 |
| Orders made: | 16 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 1 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr John Kettle of Sparke Helmore |
ORDERS
The application be 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 dated 1 March 2005.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1987 of 2004
| SZDYK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was brought before the Court by the solicitors for the respondent in the non compliance list seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth). Both parties appeared at the hearing. The applicant is a self represented litigant. After a brief hearing of submissions from both parties, further interim orders were made setting a revised timetable. The applicant was informed that if the orders were not complied with then the substantive application would be dismissed by the force of those orders. The final orders and the reasons for judgment were subsequently made in Chambers.
The proceedings
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 29 June 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 May 2004 and handed down on 3 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 30 April 2003 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDYK”.
The applicant, who claims to be a citizen of Papua New Guinea, arrived in Australia on 30 August 2002. On 5 September she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-25) (“CB”). On 30 April 2003 the delegate refused to grant a protection visa (CB pp.26-34) and on
19 May 2003 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.35-40).
In her visa application, the applicant claims to be a single woman born in April 1979. She stated that she went to school in Port Moresby from 1984 to 1996 and speaks, reads and writes English as well as Pidgin. The applicant provided no residential addresses but stated she was employed as a receptionist from mid 1998 to November 2000 and as a stores assistant from May 2001 to March 2002. The applicant claimed she obtained a passport without difficulty in November 2000 and left Papua New Guinea legally at the end of August 2002.
The applicant claimed that she lived happily in Papua New Guinea with her parents and siblings but the situation changed when her eldest brother was murdered in December 2001. After that time, the applicant claimed her parents became ill, her father lost his job and the family experienced serious financial difficulties. The applicant stated the family home was put up for auction because of non payment of the mortgage when her younger brother, whom she claimed was subject to a number of vices, took control and harassed the other family members for their earnings to pay for his bad habits. The applicant stated that this brother attempted to arrange a marriage for her in return for “a good sum of money”. When the applicant refused to participate in the marriage she stated she was badly beaten by her brother who threatened to kill her. She claimed that a number of other incidents followed which eventually led to her departure from Papua New Guinea to Australia (CB p.55).
Respondent’s application
Mr J Kettle, Solicitor appearing for the respondent in the substantive matter, made oral submissions in support of his application. It was submitted that the applicant’s original application filed in the Federal Magistrates Court consisted of the following grounds:
“(1)That there was no evidence or other material to justify in making of the decision.
(2)That a breach of the rules of natural justice occurred in connection with making of the decision.
(3)That the decision involved an error of law, whether or not the error appears on the record of the decision.”
These three grounds were the full extent of the claim being made in the application and were not supported by any particularisation or supporting affidavit.
On 1 October 2004 the applicant attended a directions hearing before Registrar McIllhatton and consented to Short Minutes of Order requiring her to file and serve an amended application giving complete particulars of each ground of review to be relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposed to rely by 12 November 2004. The Short Minutes of Order also included an order that, if the applicant failed to comply with the order to file and serve an amended application, the respondent’s solicitors may request the Registry list the matter in a non compliance list before the Federal Magistrate with the intention to apply for summary dismissal due to non compliance with the directions of the Court.
At the non compliance hearing on 1 March 2005 the respondent’s solicitors moved that the applicant had failed to disclose the grounds of review and had failed to comply with the Court orders to file an amended application. The respondent’s solicitors sought orders that the matter be dismissed for these reasons.
Applicant’s submissions
On 28 February 2005 the applicant filed written submissions which addressed the issue of the failure to file an amended application as directed. The applicant indicated that on 18 November 2004 she had attended a conference with her panel adviser appointed under the Pilot RRT Legal Advice Scheme (NSW). The applicant stated that the panel adviser had undertaken to file an amended application in the Federal Magistrates Court before 10 December 2004. The applicant stated that in the period 1 December to 10 December 2004 she had tried to contact the adviser on a daily basis to ensure an application had been filed on her behalf. Unfortunately, the applicant was unable to contact the adviser during that period. The applicant stated she did receive a letter from the adviser on 29 December 2004 but by that time the amended application submission date had passed. The applicant claimed in her submission that the adviser had promised to file an amended application but failed to do so and secondly the adviser did not write to the applicant before the due date for filing the amended application. The applicant stated that if she had been informed of the situation before the due filing date, she would have sought independent advice from another source and filed an amended application prior to
10 December 2004.
Reasons
The applicant indicated to me that she wished to pursue her application before the Court. The applicant had attended Court when scheduled to do so and insisted that she wished to keep the proceedings on foot. Consequently, I made orders to provide the applicant with a further opportunity to continue her application and advised her of the importance of complying with the timetable being set down together with the requirements of the Court to have pleadings supported by evidence before the application could proceed. The following orders were made:
1.The applicant to file and serve an amended application giving full particulars of each ground of review being relied upon by 1 April 2005.
2.The respondent has leave to file and serve any further written submissions in response to the amended application by 8 April 2005.
3.If the applicant does not comply with Order 1, the matter will be dealt with in chambers by Federal Magistrate Lloyd-Jones for summary dismissal.
4.Parties have liberty to apply for further directions.
5.The applicant to pay the respondent’s costs of today fixed in the sum of $300.00.”
On 21 March 2005 the applicant filed an amended application purporting to comply with Order 1 as above. The amended application contained the following grounds:
“(a)The fact that Tribunal complied with s425 by inviting the applicant to hearing, which applicant declined to attend does not constitute compliance with s424 in relation to the specific information concerned.
(b)That a breach of the rules of natural justice occurred in connection with the making of the decision.
(c)That the decision involved an error of law, whether or not the error appears on the record of the decision.
(d)That the procedure that were required by law to be observed in connection with the making of the decision were not observed.
(e)That there was no evidence or other material to justify the making of the decision.
(f)That the decision was otherwise contrary to law.” (Errors included)
The six grounds of the amended application restate the applicant’s original claim including that the Tribunal failed to look at the facts of her case both subjectively and objectively and made a number of bald statements completely without substantiation or particularisation.
Based on the material contained in the Court Book, the original application and the amended application, there was nothing to indicate that the applicant could succeed at a final hearing if the matter were permitted to proceed further. In the case of a self represented litigant the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The material before the Court contained in the Court Book, on a fair reading of the Tribunal’s decision, does not disclose a ground of review. In the Tribunal’s findings and reasons, the member makes the following statement:
“… the Applicant’s brief claims and evidence do not suggest that she was targeted by her brother and aunt, or by the man, for a Convention reason, rather than for personal reasons because she refused their various demands and/or was the victim of their crimes against her. The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention.” (CB p.57)
I also note that on 1 April 2004 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. In the Tribunal’s letter the applicant was invited to give oral evidence and present arguments at the hearing scheduled for 11 May 2004. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. No response was received to the Tribunal’s letter (CB pp.46-47). The Tribunal attempted to contact the applicant by telephone on the number she had provided but was unable to do so because the number had been disconnected (CB p.44). The Tribunal’s letter was returned and the applicant did not appear before the Tribunal for the scheduled hearing.
I am satisfied that the applicant was provided with the opportunity to prosecute her case and to remedy the situation where she had been placed at a disadvantage because of some misunderstanding with the panel adviser. Despite indications by the applicant at the non compliance hearing that she was referring the matter to a new solicitor, the subsequently filed amended application was not consistent with that statement. As the applicant has not disclosed any arguable ground of review, I believe that the substantive application should be 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 May 2005
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