SZEQO v Minister for Immigration
[2005] FMCA 163
•17 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQO v MINISTER FOR IMMIGRATION | [2005] FMCA 163 |
| MIGRATION – Application by respondent Minister for summary dismissal – whether Notice of Objection to Competency should be upheld – whether proceedings are an abuse of process – where application for review in Federal Court dismissed for failure to comply with earlier orders. |
Migration Act 1958 (Cth), s.477(1A)
SZDCJ v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500
| Applicant: | SZEQO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3251 of 2004 |
| Delivered on: | 17 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 February 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | In person (by videolink) |
| Solicitors for the Respondent: | Ms Bautista Sparke Helmore |
ORDERS
The application is dismissed as incompetent.
The application is summarily dismissed as it does not disclose a reasonable cause of action.
The application is dismissed as an abuse of process of the Court.
The Applicant is to pay the Respondent’s costs in this application fixed in the sum of $5,250.00.
The Applicant is restrained from filing any further application for review of the decision of the Refugee Review Tribunal without leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3251 of 2004
| SZEQO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The applicant seeks a review of a decision by the Refugee Review Tribunal. That decision was made on 22 November 2002. The Tribunal handed the decision down on 18 December 2002. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant. In other words, the applicant was unsuccessful before the Refugee Review Tribunal.
The applicant arrived in Australia on 25 November 2001. On 8 January 2002 he applied for a protection visa. In his application he said that he had a fear of persecution in his own country. He is a citizen of India. He said that he had come from the State of Punjab. He is a member of the Sikh community and the Sikh religious faith. He said that he had been a member of the All India Sikh Students Federation. His uncle had been the president of the All India Sikh Students Federation. Unfortunately, the applicant's uncle was killed in the year 1995. The applicant said that his uncle was killed by the police. He said that unpleasant incidents happened after that time.
He devoted his full time to the All India Sikh Students Federation.
On 23 March, in a year unspecified, the applicant says that 35 Sikhs were killed. The applicant and other people staged a rally. They protested against the massacre of 35 Sikh people. The applicant said that he spoke to the gathering of people. He said that he criticised the government. He went on to say that the police attacked people at the gathering. He said the police arrested him and they held him at the police station for more than a week. He said that he was tortured but at last he was allowed out on bail. He said that he and his parents fled to another part of India but after a while they returned to their home area. When he did that he was persecuted again and arrested by the police. He lost his job. He went into hiding in other parts of India. Eventually he obtained the money for an airline ticket and he left India for Australia. He said that he fears persecution because of his Sikh ethnicity and his involvement in the All India Sikh Students Federation.
On 18 June 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused his application for a visa. On 11 July that year he made an application to the Refugee Review Tribunal. He asked the Tribunal to review the decision. The Tribunal listed the matter for hearing. The Tribunal listed his application for hearing on 21 November 2002. The Tribunal wrote to the applicant advising him of the time, date and place of the hearing. A copy of that letter was sent to the applicant's migration agent.
The applicant did not attend the hearing. He said that his migration agent told him not to attend. The hearing went ahead in the applicant's absence. The applicant says that his migration agent did not attend either. It is hard to tell from the Tribunal's decision whether or not the migration agent did attend. In any event, the Tribunal considered the applicant's claim that he set out in his application and considered the matters in the department's file.
The Tribunal said in its decision that the applicant wrote to the Tribunal on 21 October 2002. In that letter the applicant said that he did not want to attend the hearing. A copy of the letter from the applicant's migration agent appears in the court book. On page 80 of the court book the copy of the letter contains a signature which appears to be from the applicant. I have examined the applicant's signature on the application to this court. It appears to me to be very similar to the signature that appears on the letter to the Refugee Review Tribunal.
The Refugee Review Tribunal considered the merits of the applicant's claim. The unfortunate fact for the applicant is that the Tribunal did not accept his claim. The Tribunal points out that it was unable to test his claims although it accepted some of them. However, at page 93 the Tribunal describes some of the applicant's written evidence as contradictory and refers to his claims as vague. The Tribunal was not satisfied that the applicant's fear of persecution was well-founded. The Tribunal relied on independent country information. The Tribunal also noted that the applicant did not claim to have experienced any difficulty practising his religion. The Tribunal did not grant the applicant's application.
What appears to have happened then is set out in the affidavit of Catherine Jane Gray sworn on 25 November 2004. The affidavit shows that a solicitor, one Mark Wallis Clisby, filed a draft order nisi and an accompanying affidavit in the High Court. That happened on
2 January 2003. On 7 February 2003 the High Court remitted those proceedings to the Federal Court of Australia. The matter proceeded in the Federal Court.
On 7 July 2003 a judge of the Federal Court in Adelaide made orders requiring the applicant to file further documents. It appears that no further documents were filed. On 8 September 2003 Lander J in the Federal Court dismissed the applicant's proceedings because the applicant had not complied with any of the directions set out in the earlier orders.
The applicant did not apply to set aside those orders of the Federal Court. What he did do was file a further application in this court. He did this on 3 November 2004. He lodged that application after he had been taken into immigration detention. I have a copy of that application in front of me. It is dated 1 November 2004. The applicant says that a friend of his helped him prepare it. He says that his friend took down what he said in Hindi and translated it into English.
I put to the applicant that I had seen an almost identical document from another applicant the day before. That applicant was also an inmate of a detention centre. The applicant could not explain that coincidence. The wording of the particulars set out on the second page of the application can best be described as a proforma set of grounds. There are seven in all and I will quote them verbatim:
1.The Tribunal deprived me of natural justice.
2.The Tribunal denied the evidentiary proof of my claims.
3.The Tribunal did not observe the Migration Act of 1958 properly.
4.The Tribunal decision did not reflect the material proof of my claims.
5.The Tribunal mixed up many facts with this decision which affected the decision.
6.The Tribunal concentrated in particular fact, while ignored many other facts in this condition.
7.The Tribunal make up his mind without any inquiry regarding my claim.
As I said, these proforma grounds are identical to grounds that appear in other applications. I asked the applicant about the grounds but in many cases he was not able to explain to me what the grounds meant. This is surprising in the light of his claim that he had dictated the application in Hindi and his friend had just translated it into English.
As far as the first three grounds are concerned the applicant said that the Tribunal deprived him of natural justice and otherwise fell into error by deciding the case in his absence. Since the Tribunal invited the applicant to attend the hearing and the applicant elected not to attend I cannot see how the Tribunal could be accused of denying the applicant natural justice.
The grounds four, five and six of the application relate entirely to matters of fact. It is well known that the Tribunal is the final arbiter of facts and judicial review does not extend to a reconsideration of the merits of a case.
Ground seven of the applicant complains that the Tribunal made up its mind without any inquiry regarding his claim. The Tribunal had invited the applicant to attend and the letter sent by the Tribunal to the applicant clearly says in its first paragraph:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
In other words, the letter makes it quite clear to the applicant that if the applicant's claim is to be successful the Tribunal needs more evidence from the applicant. If an applicant, after having received such a letter, makes a decision not to attend the hearing and give evidence, then the applicant can hardly expect that his or her application will be successful.
The applicant has told the court today that his migration agent told him not to attend. I do not know whether that is true or not. I have said before in this court and I will say it again, that an applicant who elects not to attend a hearing of the Refugee Review Tribunal usually makes a very serious mistake. In many cases an applicant's evidence to the Refugee Review Tribunal may make the difference between success of an application or failure.
The respondent seeks to have the application dismissed on several grounds. I will consider them in order. The first ground is that the respondent objects to the application because it is not competent. What that means is that the court does not have the jurisdiction to hear the application. The application was lodged outside the 28 day time limit set out in section 477(1a) of the Migration Act. There is no doubt that this application is out of time. The section provides a 28-day time limit. The decision of the Refugee Review Tribunal was handed down on 18 December 2002. The application was not lodged until
3 November 2004. It is quite obviously out of time. It is necessary, however, for the court to consider the substance of the application in order to decide whether the time limit under section 477(1a) applies.
I have considered the substantive application. The complaints by the applicant can be summarised as these:
The applicant said that he was deprived of natural justice because the application was heard in his absence.
As the applicant was invited to the hearing but elected not to attend this claim has no merit.
The applicant complains of a breach of the Migration Act. He does not provide any particulars as to which part of the Migration Act he said has been breached. My reading of the Tribunal's decision and other matters in the court book does not show any indication of a breach of the Migration Act. If anything the reverse is true. The court papers indicate that the Tribunal followed the Migration Act.
The applicant complains that the Tribunal made factual errors and, in effect, seeks a merits review. As I said earlier, the judicial review does not extent to a rehearing on the merits.
The applicant complains of prejudice or bias on the part of the Tribunal. I see no evidence of that whatsoever. In my view, the substantive application is without merit, and does not disclose any reviewable error by the Tribunal. It appears to me, therefore, that the decision of the Tribunal is a privative clause decision, and section 477(1a) operates to show that the application is well and truly out of time. To use the legal terminology, the applicant is incompetent.
The respondent also seeks an order for summary dismissal of the application on the basis that the application does not disclose any reasonable cause of action. As I said earlier, I have considered the substantive application. For the reasons I have given before, I am satisfied that the application discloses no evidence of any reviewable error. It follows that the application does not show any reasonable cause of action.
The Federal Magistrates Court Rules provide for summary dismissal of an application if it fails to disclose any reasonable cause of action. It follows that the application for summary dismissal must also succeed.
The third ground brought by the respondent is that the application should be summarily dismissed because it is an abuse of process of the court. I have considered the evidence set out in the affidavit of Katherine Jane Bray sworn on 25 November 2004. That affidavit makes it quite clear that the applicant has already sought judicial review of the Refugee Review Tribunal's decision. That application was originally brought in the High Court on 2 January 2003.
As I said earlier, on 7 February 2003, the High Court remitted those proceedings to the Federal Court of Australia. On 8 September 2003, the Federal Court dismissed the application. The applicant has not gone back to the Federal Court asking it to set aside that order. What the applicant has sought to do is commence proceedings again but this time in the Federal Magistrates Court. That is quite clearly an abuse of process.
The applicant has said today that he had no knowledge of the proceedings being conducted in the High Court. He has said that all this was arranged through his migration agent. He has said that the migration agent no longer practices as a migration agent. That may well be, but the applicant's complaint if he has one should be against the migration agent rather than the Refugee Review Tribunal.
The result of these proceedings must be that the application is dismissed. The application is dismissed as incompetent. The application may also be summarily dismissed as it does not disclose a reasonable cause of action. The application should also be dismissed as an abuse of process of the court.
This is clearly a case for an order for costs. Costs not only follow the event but unmeritorious applications should be the subject of an order for costs. Where an application represents an abuse of process a court should look seriously at making a costs order in order to discourage such a practice. I am not persuaded that an order for indemnity costs is appropriate but I am of the view that I should make an order for fixed costs today. The applicant is to pay the respondent's costs of this application, fixed in the sum of $5250.
I am of the view that having found this application was an abuse of process I should act to preclude any further abuses of process. I further order that no further application by the applicant to review the decision of the Refugee Review Tribunal, handed down on 18 December 2002 is to be accepted for filing without leave of the Court.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 23 February 2005
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