SZDZH v Minister for Immigration - [2005] FMCA 802

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDZH v MINISTER FOR IMMIGRATION

[2005] FMCA 802

MIGRATION – Refugee – Notice of Objection to Competency – Notice of Motion – costs against the Solicitor.

Migration Act 1958, ss.477, 474
Federal Magistrates Court Rules, 13.10(c), 21.02(2)(a), 21.07

Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2
Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 420
Re Minister for Immigration & Multicultural Affairs; Exparte Durairajasingham [2000] HCA 1
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant:

SZDZH

Respondent:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2036 of 2004

Delivered on:

20 May 2005

Delivered at:

Sydney

Hearing date:

20 May 2005

Judgment of:

Nicholls FM

REPRESENTATION

Solicitors for the Applicant:

Mr. C. Jayawardena

Counsel for the Respondent:

Mr. A. Carter

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed on the basis of the upholding of the respondent's Notice of Objection to Competency.
Pursuant to the rule 21.07 of the Federal Magistrate Court Rules the applicant's solicitor on the record as at 10 December 2004 pay the respondent's costs for that day set in the amount of $750.
The applicant pay the respondent's costs for the remainder set in the amount of $3750 pursuant to rule 21.02(2)(a) of the Federal Magistrate Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2036 of 2004

SZDZH

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

I have before me an application, and a supporting affidavit, filed in this Court on 2 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 June 2002 and handed down on 24 July 2002 to affirm the decision of a delegate of the respondent Minister made on 13 June 2000 to refuse a protection visa to the applicant.
The applicant is a citizen of Nepal who arrived in Australia on 26 April 2000. On 18 May 2000 he lodged an application for a protection visa with the respondent's Department. Following refusal of this visa he sought review by the Tribunal on 7 July 2000.
I also have before me filed by the respondent:
1)On 12 August 2004 a Notice of Objection to Competency asserting that the application to this Court was made outside the time limit for such applications pursuant to s.477(1A) of the Migration Act;
2)On 14 September 2004 Notice of Motion seeking summary dismissal of the application pursuant to rule 13.10(c) of the Federal Magistrate Court Rules (abuse of process) and rule 13.10(a) of the Federal Magistrate Court Rules (no reasonable cause of action).
3)The affidavit with Annexures “A” to “F” and Exhibit marker “B2R001” but also referred to as “Exhibit AJHI”, of Bernadette Marie Raymond, a solicitor employed by the respondent's solicitors sworn on 13 September 2004.
The applicant has also submitted an affidavit sworn on 17 November 2004 and a written outline of submissions on the respondent's Notice of Motion.
On 6 October 2004, the Court with consent by the applicant's and respondent's solicitors, set down the respondent’s two Notices for hearing at 11:15 a.m., on 10 December 2004. On that date the applicant's solicitor, Mr. Jayawardena, did not appear. The respondent's solicitor tendered three exhibits subsequently marked:
1)“RE-1” – being a letter dated 13 October 2004 from the respondent's solicitor to the applicant's solicitor with reference to a letter dated 6 October 2004 from the applicant's solicitor to the respondent's solicitor.
2)“RE-2” – being a letter dated 18 November 2004 from the applicant's solicitor to the respondent's solicitor.
3)“RE-3” – a letter dated 1 December 2004 from the respondent's solicitor to the applicant's solicitor.
Today Mr. Carter for the respondent tendered “RE 4”, a letter dated

14 December 2004 being a letter from the respondent's solicitor to the applicant's solicitor.
The sequence of events shown by the correspondence is:
1)That the applicant's solicitor (Mr Jayawardena) on 6 October 2004 sought the respondent's solicitor's consent to have the date for the hearing of the Notices moved to some time in January 2005, on the basis that he had forgotten that he had made arrangements to go overseas for his daughter's wedding and would not be able to attend on 10 December 2004.
2)The respondent's solicitors opposed any delay in the hearing and advised they were amenable to an earlier hearing date.
3)The applicant's solicitor responded by saying the applicant would appear in person on 10 December 2004, but again sought consent to move the hearing date to January 2005 so that he could adequately represent matters to the Court on behalf of the applicant.
4)The respondent's solicitors, as at 1 December 2004 wrote to the applicant's solicitor and maintained their earlier position.
On 10 December 2004 the applicant appeared and sought an adjournment on the basis that he was unable to proceed without his legal representative. He said that his solicitor had told him to attend, but that he was not able to proceed without his solicitor. I adjourned the matter, which was subsequently set down for today.
Before me today the applicant was represented by solicitor Mr C Jayawardena and the respondent by Mr A Carter. The respondent today pressed the Notice of Objection to Competency. I note that the Tribunal’s decision was made on 30 June 2002 and handed down on

24 July 2002. The application to the Court was made on 2 July 2004 and the respondent says that as the application was made after the 28 day period provided for in s.477(1A) of the Migration Act, and as this Tribunal decision is a privative clause decision, the Court has no jurisdiction to hear the application.
In the case of Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2 a Full Federal Court decision on

4 November 2002, upheld the judgment of Nicholson, J who at first instance held that an appeal against a privative clause decision, lodged outside the time limit in s.477 of the Migration Act is in those circumstances incompetent unless a ground of review can be made out. In determining whether the Tribunal made a jurisdictional error regard must be had to s.474 of the Migration Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 420. If the Tribunal’s decision in the case before me is a privative clause decision pursuant to s.474 of the Act then the time limit provided in s.477(1A) of the Act would apply. I also note that pursuant to s.477(2) of the Act, the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which as I have said is of course

28 days.
The issue of whether the decision complained of is a privative clause decision or not requires an examination of the grounds of review.

I should note in case there is any doubt on the part of the applicant’s solicitor, that the current Part 8 of the Act, which contains s.474 and s.477(1A) became operational on 2 October 2001. These provisions apply to administrative decisions made after that date. The Tribunal decision, as I have said, was made on 30 June 2002 and therefore the current Part 8 of the Act applies. The task then for this Court is to determine whether this decision is infected with jurisdictional error or not.
The application to this Court merely asserts that the Tribunal exceeded its jurisdiction and erred in law by affirming the decision of the delegate of the respondent's Minister. The grounds of the application are stated to be:
“The applicant asserts that the Tribunal made a ‘serious jurisdictional error’ by concluding that as the Tribunal has already found that he was not a member involved with the Maoists, then this claim cannot be sustained.”
No particulars whatsoever are provided. This is nothing more than a mere statement disagreeing with the Tribunal’s decision, and at very best may be arguing for impermissible merits review. The applicant’s cause clearly required an amended application. I note and do take into account that the application was filed by the applicant personally who at that time was legally unrepresented. But the applicant is now legally represented and significantly has been represented since 18 November 2004 when a Notice of Appearance was filed on his behalf by solicitor, Mr Jayawardena. However, no amended application has been filed. No proper grounds for review have been put forward.
In relation to the applicant's failure to date to provide any proper grounds for review, let alone any particulars of these grounds, the applicant has asserted in an affidavit sworn on 18 November 2004 and in particular at paragraph 17:
“The applicant states that he was denied by the Respondent's Solicitors from filing an Amended Application according to the practice in the Court and therefore did not have the opportunity to explain in detail the Tribunal’s ‘jurisdictional errors’. Therefore the Applicant states that the Respondent's Solicitor cannot take up the position that the Applicant has not disclosed a ‘proper cause of action’ when in fact that opportunity had been denied to the applicant by them.”
On what is before me I can see no basis to sustain this claim. It was clearly always open to the applicant through his solicitor to file an amended application properly stating grounds for review with particulars. The applicant has had at least, since 18 November 2004 when he obtained the services of his solicitor to have done this. Before me today Mr Jayawardena for the applicant was unable to satisfactorily explain this failure to provide proper grounds for review in this seven month period. He again made reference to “practices this Court” and a reference to the respondent having filed the Notices to which I have already referred and that somehow this prevented the applicant from filing any amended application in support of his claim.
If what the applicant is now seeking to rely on is that somehow the respondent's mere filing of this Objection to Competency or Notice of Motion prevented the filing of an amended application or indeed even making submissions asserting proper grounds, then as I have said I can see no basis for this:
1)The applicant’s solicitor was not able to point to any rules of this Court, or any orders or directions made by this Court, that would have acted to prevent this course of action.
2)Further, at a directions hearing before the Registrar of this Court on 6 October 2004, the applicant's current solicitor, albeit who was not then on the record for the applicant but appeared for directions only, signed short minutes of order with an undertaking to provide a copy to the applicant. These subsequently became orders of the Court. I cannot see anything in these orders which would have prevented the subsequent filing of an amended application with full particulars. Nor in the alternative that it was not open to the applicant's solicitor to have sought to insert orders or directions providing for this course of action. There is nothing before me to show that any such attempt was made.
3)
Even further, it is clear that Order 2 made on the first Court date listed the Notice of Objection to Competency for hearing on

10 December 2004. The hearing did not take place on that date and for the reasons given above was moved to today.
Nonetheless, both the applicant and his solicitor knew that the Notice of Objection to Competency would proceed to hearing. In this regard Mr Jayawardena has made both written, and before me today, oral submissions. His position is that the Court is fully aware that s.477(1A) of the Act does not apply to decisions which are infected with jurisdictional error and he relies on Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 420 to assert that the High Court held that there cannot be any time limit on migration matters when the Tribunal has committed jurisdictional error.

Mr Jayawardena's submission is obviously acceptable to this point. But in seeking to answer the respondent's Notice of Objection to Competency, the applicant with legal representation does not go any further than the mere assertion of jurisdictional error in attempting to show that such error occurred. In making reference to Plaintiff S157 Mr Jayawardena would have known that the objection to competency would have been upheld in circumstances where the application to the Court had been made outside the 28 day time limit imposed by s.477(1A) and where a ground of review had not or could not be made out. I gave Mr Jayawardena further opportunity today to make submissions to me in an attempt to put some substance to the mere assertion of jurisdictional error on the part of the Tribunal’s decision or to provide any ground for review.
In all the circumstances I am satisfied that the applicant has had the opportunity to put forward material to support the claim of jurisdictional error. Indeed the fact that the Notice of Objection to Competency was listed for hearing should have been seen as an opportunity or even a necessity on the part of the applicant to file or argue something of substance as a means of combating the time limitation in s.477(1A) and as explained by the High Court in S157. In that sense the Notice of Objection to Competency was a clear invitation to put forward further material, if not a necessity to do so. It was not a bar to doing so.
As I have said, in answering the respondent's Notice of Objection to Competency the applicant has not put before this Court beyond mere assertion any material either by way of amended application, written submission or other to address the issue of whether the Tribunal’s decision contains jurisdictional error. Mr Jayawardena in submissions before me today made reference to the issue of credibility in the Tribunal’s decision and I will deal with that as I go through the Tribunal’s decision to ascertain whether a ground of review can be made out.
A copy of the Tribunal’s decision is before me by way of the annexures to the affidavit filed by the respondent's solicitors. The annexures to the affidavit contain the Court Book filed in previous Federal Court proceedings concerning the same Tribunal decision. The history of the litigation concerning the applicant and the Tribunal’s decision is set out in the affidavit and annexures, and also helpfully in subsequent written submissions filed in Court by the respondent's representative Mr Carter before me today.
The Court Book contains the history of the applicant's application for a protection visa, and his application for review to the Tribunal. The applicant was represented before the Tribunal and written submissions were made on his behalf by Parish Patience Solicitors, on 17 June 2002. Following a hearing before the Tribunal on 6 June 2002. The Tribunal’s decision record, (I will just refer to the Court Book numbers for ease), is at CB 178 to CB 198. The applicant's claims were contained in his application for a protection visa to the respondent's Department, in a statutory declaration of the applicant submitted by his advisors before the hearing with the Tribunal including other documentation, being relevant country information, and a written submission received by the Tribunal after the hearing. The Tribunal’s account of the applicant's claims are at variously CB 183.5 to 184.3, CB 189.3 to CB 194.1.
The applicant's claims were that he is a Nepalese who became interested and influenced by Maoist ideology, and in March 1998 joined the Maoist Party in Nepal and began work as an activist and campaigner for the Maoists. He claimed his role was to inform villagers and school children about Maoist activities at informal community gatherings and this involved distributing literature and putting up posters. He claimed to have been approached by the police in November 1999 while he was so engaged, and that they threatened to harm him both physically and mentally. He claimed the police continued to look for him after he had run away on that occasion.

He claimed to fear for his life because he continued to be harassed because of his political opinion. At the hearing before the Tribunal the applicant also said that he was now fearful of his own party, that is the Maoist Party, because he did not support them any more and that they might kill him because they may think he will betray them by revealing information about their meetings.
While the Tribunal had a range of independent country information before it including the material submitted by the applicant, it is quite clear from its decision record, and in particular in looking at the decision record in its totality, that at the core of the Tribunal’s decision, the central component of the Tribunal’s decision, was that it did not believe the applicant's claim that he was a member of the Maoist Party or that he was involved in the activities of this party as he claimed. The Tribunal based its findings on the applicant's own evidence. At CB 195.1 the Tribunal said:
“The Tribunal has given consideration to the submission made on behalf of the applicant in relation to the applicant's credibility. However, the Tribunal did not find the applicant's claims to be plausible or credible.”
It based this on the following:
1)It found it implausible that a person with the profile claimed by the applicant before March 1998 to have suddenly begun to campaign for the most radical revolutionary political party in Nepal which had been waging a violent insurgency against the Nepalese authorities for the two years previously (see CB 195.3).
2)It did not accept that a person claiming to be a political activist trying to obtain recruits to his ideology would forget what was written on posters and pamphlets he was distributing (see CB 195.5).
3)The Tribunal said the applicant demonstrated very little knowledge about the Maoists, their history or ideology, and did not accept the applicant's advisor's submission that as an ordinary member he could not be expected to have a detailed knowledge of the Maoist Party. The Tribunal said its questions were basic and it expected that the applicant would have had knowledge of the things he claimed that he was involved in telling the students and villagers (see CB 195.8).
4)The Tribunal found it implausible that a person who was aware, as he has stated in his own evidence according to the Tribunal, and disapproved of the violent tactics used by a political organisation to achieve its aims, would then join that very organisation and then claim that he had not made any enquiries as to what kind of tactics it was using (CB 196.2).
The Tribunal found the applicant not to be credible, and that he did not engage in the political activities as claimed. It was not satisfied that the applicant faced serious harm from the Nepalese authorities for reason of political opinion or any other Convention reason. It further found that his claim to be at risk of harm from Maoists is predicated on his once being a member of the Maoists. As it had found that he was not a member involved with the Maoists, then this claim could not be sustained. The Tribunal therefore found that the applicant did not have a well founded fear of persecution for a Convention reason should he return to Nepal.
On the material before me, clearly the Tribunal’s decision turned, on its view of, and finding on, the applicant's credibility. It did not believe the applicant's claims. Before me today Mr Jayawardena took me to parts of the Tribunal’s decision record dealing with the findings on credibility and essentially invited the Court to look at the claims made by the applicant and to determine that it was not open to the Tribunal to make the findings that it made in light of the claims put forward by the applicant. In particular on the issue of credibility he argued that there was insufficient material before the Tribunal to justify such a finding. The assertion now that the Tribunal made a serious jurisdictional error by concluding that he was not involved with the Maoists, is to a large extent unparticularised and unsupported by any real argument.

Mr Jayawardena at the hearing before me today, took me to CB 196.3 and in particular to the second paragraph which reads in part:
“For these reasons the Tribunal finds that the applicant to be credible…..”
Mr Jayawardena has invited me to adopt the view that the words are to be read as they are found in that sentence and constitute a positive finding in relation to the applicant’s credibility. I cannot accept this submission. A plain and clear reading of the whole of the Tribunal’s decision clearly shows that there has been a typographical error on the part of the Tribunal. Even, on a plain reading of the whole of the relevant paragraph it is quite clear that the Tribunal meant to say:
“For these reasons the Tribunal finds the applicant [not] to be credible.”

Mr. Jayawardena also took me to the fourth paragraph at CB 196:
“The Tribunal finds that the applicant's claim that he is at risk of harm from the Maoists is predicated on his having once been a member of the Maoists. As the Tribunal has already found that he was not a member or involved with the Maoists, then this claim cannot be sustained. The Tribunal finds therefore that the applicant does not face a real chance of harm from the Maoists for reasons of his political opinion, actual or imputed, should he return to Nepal.”
The complaint is that when reading this paragraph as against the applicant’s preferred reading of the previous paragraph [see 21 above] that the Tribunal was in error. That if it found him to be credible it was not open to it to make this finding. It is quite clear that the Tribunal dealt with all of the applicant's claims as put. The applicant was given ample opportunity and was aware of the Tribunal’s doubts about his credibility. The Tribunal clearly found him not to be credible in relation to his claims of having joined and promoted the Maoists.

It found that the applicant did not join the Maoists as he had claimed, that he was not an ordinary member or any other kind of member of the Maoists and was not involved in the activities he claimed and for this reason found that he did not face a real chance of serious harm from the Nepalese authorities. In the second paragraph complained of by Mr Jayawardena, the Tribunal is clearly addressing a subsequent claim made by the applicant flowing out of his initial and central claim, that is, that being a member of the Maoist that he would now be at some risk because of suspicions that the Maoists may have formed about him. Clearly, the Tribunal in dealing with that particular aspect of the applicant's claims has found that given that he was not a member of the Maoists, then this subsequent claim would logically fall away. I can see no error in the way that the Tribunal has approached and dealt with this particular claim.
On the material before me, the Tribunal' decision did turn on the applicant's credibility. It did not believe the applicant's claims in relation to his joining the Maoists. The Tribunal’s findings were all open to it on the material before it. It well established that findings of fact, including findings on credibility, are for the Tribunal to make. (McHugh J in the High Court decision of Re Minister for Immigration & Multicultural Affairs; Exparte Durairajasingham [2000] HCA 1).
Further, consistent with relevant authorities, the Tribunal gave reasons for these findings, and it is clear that the Tribunal put its doubts about the applicant's claims to the applicant at the hearing before it and gave the applicant and his advisor opportunity to make further submissions. The advisor did so and the Tribunal took these submissions into account. There is nothing before me to show that the applicant was denied the opportunity to put his case or to explain it, or that he was in the dark as to the likely basis of the Tribunal’s decision.
During the course of the hearing today I was also invited by the applicant's representative to look at what other matters may not have been before the Tribunal, and which should have been. To the extent that this may go beyond a complaint which is nothing more than impermissible merits review, the applicant has put nothing before the Court to show that the Tribunal ignored relevant material. In that regard I rely on Full Federal Court authority in the case of NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241. This Court can only proceed on the basis of the material that has been presented before it.
In all, I can see no error in how the Tribunal has approached its task in this case. There is nothing before me put forward by Mr Jayawardena to support a claim that there is jurisdictional error on the part of the Tribunal in the making of this decision. In all the circumstances and on the material before me I can see no error of substance, let alone jurisdictional error in what the Tribunal has done. This is therefore a privative clause decision as explained by the High Court in Applicant S157 and the time limit in s.477(1A) applies. As the application for judicial review was lodged outside the time period specified in the Act the respondent's Notice of Objection to Competency is upheld and the application is dismissed on that basis. In view of that, it is not necessary to further consider the respondent's Notice of Motion. The application is dismissed in upholding the respondent's Notice of Objection of Competency.
Mr. Carter, for the respondent in seeking an order for costs submitted that he has been instructed to ask for an order for costs in the amount of $750 pursuant to rule 21.07 Federal Magistrates Court Rules to be made against Mr Jayawardena, the solicitor on the record for the applicant, for failure to appear at the hearing scheduled for this matter on 10 December 2004.
On the issue of whether Mr Jayawardena should personally pay costs for the adjourned hearing of 10 December 2004. I am satisfied that

Mr Jayawardena was given a reasonable opportunity to be heard on this issue today. I note the complaint made by him regarding the lack of professional courtesy on the part of the respondent’s solicitors, but also note that there was clear notice on a number of occasions that the respondent’s solicitors did not agree to any adjournment. Further, it was open to Mr Jayawardena to take alternative action, for example, to contact the Court in a formal way to seek, or make an application for, an adjournment directly, or otherwise to arrange to send another lawyer or an agent to act on his behalf. Alternatively he could have withdrawn as solicitor on the record as he was invited to do so by the respondent. Before me today Mr. Jayawardena was unable to adequately satisfy the Court as to why he failed to take any such reasonable options, with ample time to do so. As a legal practitioner who clearly understood that a hearing is to take place in relation to his client, an applicant who is from a non-English speaking background, for whom he is still the solicitor on the record, Mr Jayawardena clearly had an obligation to ensure that his client would be represented at a hearing for which there had been ample notice. Further, I note that I clearly asked

Mr Jayawardena whether he had any objections to the making of the order for costs against him. He responded:
“No, I have no objection.”
I am satisfied under the circumstances that it is reasonable and appropriate that the applicant’s solicitor, as the solicitor on the record as at 10 December 2004, pay the respondent's costs for that day set in the amount of $750. These costs were incurred by the respondent, who did appear on that date in circumstances where the hearing could not proceed because the applicant’s solicitor unreasonably failed to do any act necessary for the hearing to proceed. Mr Jayawardena’s perception of a lack of professional courtesy on the part of the respondent’s solicitors is not justification for doing nothing other than sending his non-English speaking and unrepresented client along to a hearing to ask for an adjournment that he already knew had been repeatedly opposed by the respondent. The applicant should not have to pay for his solicitor’s unreasonable action in this regard. The applicant should however, in the circumstances of this case, pay some of the remainder of the respondent’s costs and I will make that order also sought my Mr Carter.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 21 June 2005