SZDZX v Minister for Immigration
[2005] FMCA 660
•10 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZX v MINISTER FOR IMMIGRATION | [2005] FMCA 660 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – interim application upheld – application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with orders of the Court. |
Federal Magistrates Act 1999 (Cth), ss.14, 15
Migration Act 1958 (Cth), ss.91R(1)(a), 91X
Judiciary Act 1903 (Cth), s.39B
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Nagalingam v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 191
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
| Applicant: | SZDZX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2228 of 2004 |
| Delivered on: | 10 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 10 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms A Hawkes of Clayton Utz |
ORDERS
The respondent’s interim application is upheld.
The application is dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with 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 $2,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2228 of 2004
| SZDZX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was brought before the Court by the solicitor for the respondent as an interim application seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth). The applicant is a self represented litigant and had the assistance of a Mandarin interpreter. The respondent filed written submissions and an affidavit in response to the matter being listed for the hearing of the application.
The applicant in this matter (SZDZX) was a party listed on the original visa application of his wife (SZEAH). The applicant made no specific claims under the Refugee Convention but relied upon membership of his wife’s family unit. The applicant and his wife made their application for review to the Refugee Review Tribunal (“the Tribunal”) under the same arrangement but have subsequently separated and have filed individual applications with the Federal Magistrates Court. The applicant’s wife filed separate proceedings (SYG2279 of 2004 with pseudonym “SZEAH”: see SZEAH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA ….) however, the grounds of her application were identical to those of the applicant. Although the hearing the applicant and his wife were listed separately the respondent’s solicitor made an application to the Court to have the matters heard concurrently as the documentation filed in support of the application, together with the submissions were also in the same terms.
As the substantive hearings for both the applicant and his wife have been listed for 8 September 2005, I believe it was in the applicants and respondent’s interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated that I would publish my written reasons for those orders.
The proceedings
By interim application filed on 8 April 2005, the respondent moved the Court for orders that the proceedings be dismissed by the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Act 1999 (Cth). The grounds for dismissal sought by the respondent were:
1.An order that the application filed 19 July 2004 be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules (“Rules”) on the basis that:
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief;
(b)further or in the alternative, the proceeding or claim for relief is frivolous or vexatious; and
(c)further or in the alternative, the proceeding or claim for relief is an abuse of the process of the Court.
2.Further or in the alternative, an order that the application filed 19 July 2004 be dismissed pursuant to rule 13.03(2)(b) of the Rules on the basis that the Applicant in default of the orders made by Registrar McIllhatton on 19 October 2004 failed to file and serve an amended application by 10 January 2005.
The main proceedings in this matter was 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 15 July 2004 for a review of the decision of the Tribunal made on 28 May 2004 and handed down on 22 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 16 March 2004 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 “SZDZX”.
The applicant arrived in Australia on 30 January 2004 with his wife. They claimed to be citizens of the People’s Republic of China. On
25 February 2004 the applicant 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.1-40) (“CB”). The applicant’s wife made specific claims under the Refugee Convention. However, the applicant relied on his membership of his wife’s family and made no separate claims. On 16 March 2004 the delegate refused to grant protection (Class XA) visas (CB pp.43-54) and on 6 April 2004 the applicant and his wife applied to the Tribunal for a review of the delegate’s decision (CB pp.57-60).
In a letter attached to her original visa application, the applicant’s wife (SZEAH) claimed that she worked at a printing factory from 1980 until September 2000. She stated she was dismissed from her job because of her involvement in a strike organised by a labour union in the city to protest about the poor welfare offered by the state-owned enterprises. After losing her job, the applicant’s wife claimed she was unable to find other employment because of government sanctions. The applicant’s wife stated that she opened a restaurant in Acheng City and business was initially successful. However, when the applicant’s wife’s involvement in the strike came to the attention of the relevant authorities they sent her a warning letter stating her business license would be cancelled. The applicant’s wife claimed that public servants from the Acheng Epidemic Prevention Station and the Acheng Tax Office abused their authority and blackmailed her. She claimed she received a summons from the court requesting her to respond to an allegation that she was illegally operating of a business. The applicant’s wife claimed she feared being unjustly sentenced and left China to come to Australia (CB p.29).
The applicant made no separate claim and depended entirely on his wife’s application.
Respondent’s application
Ms A Hawkes, Graduate-at-Law, appearing for the respondent in the substantive matter, advised the Court that she relied upon an interim application and her supporting affidavit filed on 8 April 2005. These documents were supported by oral submissions in support of the interim application. The Court was referred to the application filed by the applicant on 19 July 2004 which contained the following grounds:
1.The Tribunal found (at page 6) that the corruption, extortion and bribery by officials are common in China was not the essential and significant reason for the persecution they fear as required by s.91R(1)(a) of the Migration Act. The Tribunal fell into jurisdictional error in making this finding.
2.The Tribunal found (at page 6) that there is insufficient evidence to support applicant’s claims there was anything special about the Acheng Epidemic Prevention Station and the Acheng. The Tribunal fell into jurisdictional error in making this finding.
That was the full extent of the claim being made in the application and was not supported by any particularisation or supporting affidavit.
The Court was referred to the Tribunal’s decision under the heading of “Findings and Reasons” and in particular to the finding that the applicant’s wife had used in the pleading of her first ground. The Tribunal stated:
“Corruption, extortion and bribery by officials are common in China and there is insufficient evidence about how her problems related to her claimed involvement in a strike as government authorities often asked for bribes in China.” (CB p.78)
This was not a finding in respect of s.91R(1)(a) of the Act, but rather a finding as to the evidence admitted by the applicant in respect of these claims. The Tribunal clearly set out in its findings that the decision maker was not required to make out the applicant’s case nor was the Tribunal required to accept uncritically any or all of the allegations made by the applicant and referred to the authorities of Minister for Immigration & Ethnic Affairs v Guo & Anor; Nagalingam v Minister for Immigration, Local Government & Ethnic Affairs and Prasad v Minister for Immigration & Ethnic Affairs at 169-170.
In respect of the second ground, the Court was referred to the third paragraph on page 6 of the Tribunal’s decision (CB p.78) which stated:
“Similarly there is insufficient evidence to support [the applicant’s wife’s] claims that there was anything special about the Acheng Epidemic Prevention Station and Acheng Tax Office wanting money from her. There is sufficient evidence and information from the applicant about how she got her passport and the necessary letter from her workgroup if she had lost her job.”
The pleading of ground 2 appeared to be incomplete as the sentence ended in the word “Acheng” and presumably referred to the Acheng Tax Office. If the form of the first ground was continued there would be a relevant reference to the section in the Act. The pleading as it appeared did not raise an issue and made little sense.
In the Tribunal’s decision under the heading “Claims and Evidence” it set out the circumstances where the applicant’s wife indicated she intended to appear at the Tribunal hearing but failed to appear and did not make any subsequent contact with the Tribunal to explain her absence or seek an adjournment of the hearing to permit her to attend.
On 19 October 2004 the matter was listed before Registrar McIllhatton for directions and orders were made for the applicant to file and serve an amended application giving complete particulars for review to be relied upon by 10 January 2005. A further order was made for the applicant to file and serve any affidavit containing additional evidence to be relied upon including a transcript of the Tribunal hearing by the same date. These orders were not complied with prior to the matter coming before the Court for a hearing of the interim application.
Applicant’s submissions
When the applicant’s wife was invited to address the Court in response to the respondent’s interim application, her response was limited to a request for more time to be provided in order for her to make enquiries of various contacts within China with a view of obtaining more information to support her case. In respect of the applicant’s wife’s failure to appear at the Tribunal hearing, she indicated it was her intention to attend and had been unable to locate the building where the hearing was to be held. No explanation was given as to why no attempt had been made to notify the Tribunal of her difficulties. The applicant’s wife did indicate, however, that she had spoken to her migration agent and told him that she had missed the hearing.
The applicant was invited to make submissions in support of his claim but he had nothing substantial to add to his wife’s submission. The applicant did make some reference to the fact that his mother was practising Falun Gong however, the relevance of the statement was not very clear. This was the first time the issue had been raised and had the appearance that the applicant was attempting to embellish his claim.
Reasons
The Court file indicated that the applicant indicated he wished to participate in the Pilot RRT Legal Advice Scheme (NSW). The file also indicated that the applicant had been allocated an adviser under the Scheme but he had moved address and claimed he did not receive the letter giving details of the adviser. The applicant had attended a directions hearing on 19 October 2004 at which time the parties had consented to Short Minutes of Order and a timetable was set out for the filing and serving of documents. The content of those orders was explained to the applicant by the respondent’s solicitors with the assistance of an interpreter. A copy of the information sheet that was provided to the applicant and subsequently executed by him on that occasion was contained in the applicant’s Court file. Since that date the applicant has apparently taken no further steps in the preparation of his application. The order to file an amended application and supporting evidence by 10 January 2005 was not complied with.
The material supplied to the Department with the original visa application by the applicant’s wife was minimal and no supporting or supplementary information was supplied since lodgment of that application. The invitation to submit further information to the Tribunal in order for it to make its decision received no reply. The applicant’s wife, however, indicated that she intended to attend the Tribunal hearing but failed to appear and sought no adjournment or extension. The explanation that she had notified her migration agent of her difficulties but nothing further transpired in order to rectify the problem to give the applicant’s wife an opportunity to address the Tribunal and provide further information was difficult to accept. Given the importance of obtaining a protection visa, the applicant’s wife’s claim that the migration agent’s suggested response that no further action should be taken, following her non attendance at the Tribunal hearing, was unconvincing.
The applicant had an obligation to prosecute his own matter and in this case there was no evidence that the applicant had taken any steps to prepare his case. Sixteen months have transpired since the applicant’s wife filed her original visa application and no attempt has been made to seek or locate any evidence that supported the initial claim and the only explanation provided to this Court was that more time was required in order for that task to be commenced.
As the applicant in these proceedings was self represented there was no indication as to what assistance he received in the preparation of his original application filed in this Court on 15 July 2004. It was apparent that the applicant had received some assistance as it would appear that the person who prepared the applicant’s original application had a limited knowledge of migration law but it was not possible to determine how this knowledge was acquired. The priority at that stage appeared to be the initiation of the proceedings within the time limits required by the legislation. It would be inappropriate to penalise the applicant on the content of the pleadings prepared at that time. However, at the time of the directions hearing the applicant was supplied with a timetable and access to assistance for the preparation of an amended application. The importance of those next steps were explained to the applicant and gave the applicant more time to commence appropriate preparation in accordance with that time table. The rigid time parameters were removed and an acceptable schedule was established. The applicant failed to comply with those requirements and, on his own admission, had not taken any further step to prepare for the final hearing of the matter. If no action had been taken by the respondent’s solicitor the most likely outcome would have been for the applicant to appear at the final hearing with exactly the same circumstances as she appeared before me on this occasion.
Although the applicant has proceeded with a separate application from that of his wife, the impression that I have formed on the appearance before me at the final hearing was that the applicant in many ways was still dependent upon his wife’s application and does not appear to have done anything to further his own proceedings.
Conclusion
For the reasons set out above, I find that the respondent’s application should be upheld and that the substantive matter should be dismissed on the ground that the applicant failed to comply with the orders of Registrar McIllhatton made on 19 October 2004.
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 twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 18 May 2005
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