SZERR v Minister for Immigration
[2005] FMCA 579
•12 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZERR & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 579 |
| MIGRATION – Practice and procedure – application for judicial review of a decision 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 orders of the Court. |
Federal Magistrates Court Rules 2001, Rule 13.03A(c)
Migration Act 1958 (Cth), ss.91X, 426A
Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87
General Steel Industries v Commission for Railways NSW (1964) 112 CLR 125
Webster v Lampard (1993) 177 CLR 598.
Chung v University of Sydney [2001] FMCA 94
SZBBI & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 946
SZCHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 681
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicants: | SZERR & SZERS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG3322 of 2004 |
| Hearing date: | 12 April 2005 |
| Delivered at: | Sydney |
| Orders made: | 12 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The first named applicant appeared in person with the aid of a Cantonese interpreter.
| Solicitors for the Respondent: | Mr J Bird of Phillips Fox |
ORDERS
The respondent’s Notice of Motion 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 the orders of the Court made on 25 November 2004.
The first named applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3322 of 2004
| SZERR & SZERS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court as a Notice of Motion by the respondent’s solicitors on 12 April 2005 seeking the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). Both parties appeared at the hearing.
The first named applicant was a self represented litigant and appeared with the assistance of a Cantonese interpreter. The respondent’s solicitor filed and served a Notice of Motion on 25 February 2005, an outline of submissions ON 4 April 2005 and a Court Book on 26 November 2004. As the substantive hearing of this matter was listed on 23 November 2005 and there were serious deficiencies in the proceedings in that orders to file amended pleadings had not been complied with, I believed it was in both parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my reasons for those orders.
The proceedings
The respondent moved the Court for orders that the proceedings be dismissed pursuant to Rule 13.03(2)(b) of the Rules for failing to comply with Court orders.
The substantive application in this matter was for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
27 September 2004 and handed down on 20 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 11 June 2004 to refuse to grant the applicants protection visas.
Background
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and have been given the pseudonyms “SZERR” and “SZERS”.
The applicants, being mother and daughter, claimed to be citizens of the People’s Republic of China. They arrived in Australia on 7 May 2004. On 3 June 2004 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-32) (“CB”). On 11 June 2004 the delegate refused to grant protection visas (CB pp.39-51) and on 29 June 2004 the applicants applied to the Tribunal for a review of the delegate’s decision (CB pp.52-55).
The first named applicant (mother) was born in 1966. She claimed she was from Guangdong, had had seven years of education and worked for the same company in China from 1982 to 2004 (CB pp.15-16). The second named applicant (daughter) was born in1996. No claims were made by or on behalf of the second named applicant, who applied for a protection visa on the basis of her membership of the first named applicant’s family
In the statements submitted with the visa application, the first named applicant, hereafter called “the applicant”, claimed she began practising Falun Gong in September 1999 and practised secretly at home. On 1 October 1999 the applicant claimed she was handcuffed and told she was being taken to a police station to “confess” and stated that she guessed it was as a result of her practise of Falun Gong. At the police station she claimed she was tortured so seriously that she considered committing suicide. On 15 October 1999 the applicant claimed a friend gave the police some money and the applicant signed a three page confession and was released. She claimed she continued to study Falun Gong materials. The applicant claimed that the Chinese government banned the Falun Gong movement, declared it an evil cult and persecuted Falun Gong practitioners, even ordinary members. The applicant claimed that if she remained in China she would have had to give up her practice of Falun Gong and she would not do so. She claimed she would be persecuted by the Government if they found out she had continued her Falun Gong activities (CB p.72).
Respondent’s submissions
Mr J Bird, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)No reasonable cause of action was disclosed in the proceedings. In Fancourt v Mercantile Credits Ltd at 99, the High Court stated that the power of summary disposal should be exercised where it is clear that there is really no question to be tried: also General Steel Industries v Commission for Railways NSW; Webster v Lampard. In Chung v University of Sydney, Federal Magistrate Driver considered the authorities relating to the Court’s power to summarily dismiss an application on the basis that no reasonable cause of action is disclosed. His Honour concluded at paragraph [14] that where an applicant is self-represented, the Court must independently consider whether an arguable case based on the material could be made out.
b)The applicant has not pleaded nor is there any identifiable or arguable question to be tried. The applicant has failed to provide an amended application as ordered by the Court. The applicant’s original application asserted that “the decision made by the RRT is neither fair nor reasonable” and the “RRT’s ground for rejection of visa is insufficient”. It asserted a claim for refugee status, and stated that “both RRT and DIMIA have not considered the whole evidence provided by the applicant in regard to the current conditions in China”. However, the applicant expressly declined the invitation to attend the Tribunal hearing and give evidence and did not provide any information about the current conditions in China. Where an applicant makes vague assertions and expressly declines an invitation to give evidence at a hearing, it is hardly surprising that the Tribunal would have difficulty accepting those assertions.
c)The Tribunal considered what little evidence it had before it and found that it could not be satisfied that the applicant and her daughter were persons to whom Australia had protection obligations. The respondent submitted that the Tribunal could not, acting reasonably, have made any other decision in these circumstances. Support for this contention is found in SZBBI & Anor v Minister for Immigration & Multicultural & Indigenous Affairs where Driver FM considered at [5]:
“The first Applicant elected not to attend a hearing before the RRT and, in the circumstances, the RRT had very limited material upon which to base its decision. The decision by the first Applicant not to attend a hearing before the RRT rendered the outcome of his protection visa application inevitable.”
d)In SZCHQ v Minister for Immigration & Multicultural & Indigenous Affairs (“SZCHQ“) the applicant failed to appear at the Tribunal hearing and the Tribunal proceeded to make a decision in accordance with s.426A of the Act. The application to the Federal Magistrates Court of Australia was vague and unparticularised. No amended application was received. There was no jurisdictional or procedural error evident in the Tribunal’s reasoning. In SZCHQ Barnes FM upheld the respondent’s Notice of Motion seeking summary dismissal on the basis that no reasonable cause of action was disclosed in relation to the proceedings.
Reasons
The Tribunal wrote to the applicant on 27 August 2004 advising her that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour based on that information alone (CB pp.58-59). The Tribunal extended an invitation to the applicant to appear at a hearing to give oral evidence and present arguments in support of her claim. The scheduled Tribunal hearing date was 29 September 2004. In the Response to Hearing Invitation forwarded to the Tribunal on 25 September 2004, the applicant indicated she did not wish to attend the hearing (CB pp.60-61). This documentation was shown to the applicant during the hearing and she confirmed it was her signature on the Response to Hearing Invitation. When the Tribunal received the applicant’s notification that she would not attend the hearing, it proceeded to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The determination was made on the evidence available to the Tribunal which was extremely limited.
After the applicant filed her application for a review of the Tribunal’s decision in the Federal Magistrates Court, a directions hearing was held before Registrar McIllhatton on 25 November 2004. At that time the applicant 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 17 February 2005. On the same date the applicant was also required to file any affidavit or additional evidence to be relied upon. That order was not complied with. At the directions hearing the applicant indicated that she wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and a legal adviser was appointed to provide her with advice. That advice was subsequently provided. At the directions hearing the respondent’s solicitor provided the applicant with a number of standard, pre-printed information sheets which, with the assistance of a Cantonese interpreter, were explained to the applicant together with a brief overview of the requirements of the directions hearing.
The application for review filed on 11 November 2004 contained two grounds as follows:
“1)Both RRT and DIMIA disregarded the fact that should the applicant return to his country of origin, he would face a real chance of persecution and serious harm.
2)Both RRT and DIMIA have not considered the whole evidence provided by the applicant in regard to the current conditions in China.”
No other supporting affidavit material or evidence was provided by the applicant. The application did not disclose any reasonable cause of action and although the applicant was provided with opportunities to rectify the situation, that was not done. The applicant indicated that she had had the assistance of a migration agent throughout the time that she has pursued her visa application and at all stages during the subsequent review steps. The agent assisted her in interpreting all documents and completing any material to be forwarded to the various review bodies. The applicant also had the assistance provided to applicants at a directions hearing where information sheets are distributed and explained with the assistance of an interpreter. The applicant also participated in the Pilot RRT Legal Advice Scheme (NSW) and received written advice. Despite this assistance the applicant remains in the situation where she has no pleadings identifying a cause of action in respect of the Tribunal’s decision.
In the case of the 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. A fair reading of the Tribunal’s decision indicated that, together with the delegate, very limited material was available in respect of the applicant’s details and she declined to attend the Tribunal hearing to give further oral or written evidence.
Conclusion
As set out above, I am satisfied that the applicant had been provided with the opportunity to prosecute her matter but failed to do so. The resources that are available to a self represented litigant have been offered and, in the case of the Advice Scheme, have been provided.
The grounds in the application were general and without particularisation and did not identify any ground that the Tribunal committed any jurisdictional error. On a fair reading of the Tribunal’s decision on its face there was no readily identifiable error. In the circumstances, the respondent’s Notice of Motion must be upheld and the substantive application 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 4 May 2005
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