SZERV v Minister for Immigration
[2005] FMCA 782
•7 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZERV v MINISTER FOR IMMIGRATION | [2005] FMCA 782 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – non compliance with orders of the Court – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZERV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3329 of 2004 |
| Delivered on: | 7 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 7 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr I Muthalib of Blake Dawson Waldron |
ORDERS
The respondent’s application for summary dismissal is upheld.
The substantive 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 dated 25 November 2004.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3329 Of 2004
| SZERV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
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 12 November 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 September 2004 and handed down on
12 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 25 May 2005 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 “SZERV”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 13 May 2004. On 20 May 2004 he 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.1-30) (“CB”). On 25 May 2004 the delegate refused to grant a protection visa (CB pp.31-43) and on 16 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.44-47).
In his visa application, the applicant stated he was born in 1954 in Tiajin in China. The applicant claims that his wife, son, father, mother, brother and sister reside in China. He stated he resided at the same address in China from January 1983 until May 2004 when he departed. He claimed he was employed as an engineer from January 1970 to December 2000.
The applicant claimed he practised Falun Gong from 1996 because he suffered from severe back pain. He claimed that by practising the Falun Gong exercise regime his back pain almost disappeared. The applicant stated he was forced to cease practising Falun Gong in September 1999 because of the government banning of the movement. He claimed he was unable to practise at home or in any public place because of the ban and this resulted in the reoccurrence of his back pain. The applicant claimed the government banning of the practice of Falun Gong had robbed him of his freedom and that he left China to seek protection in Australia (CB p.7).
Proceedings history
A brief summary of the history of this application is as follows:
a)On 13 May 2004 the applicant arrived in Australia.
b)On 20 May 2004 the applicant applied to the Department for a protection (Class XA) visa.
c)On 25 May 2004 a delegate of the Department refused to grant a protection visa.
d)On 16 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
e)On 9 September 2004 the applicant attended a Tribunal hearing and was assisted by a Mandarin interpreter.
f)On 20 September 2004 the Tribunal made its decision affirming the delegate’s decision to refuse to grant the applicant a protection visa. This decision was handed down on 12 October 2004.
g)On 12 November 2004 the applicant applied to the Federal Magistrates Court for a review of the Tribunal’s decision.
h)On 25 November 2004 the applicant appeared at a directions hearing before Registrar McIllhatton. At this time the applicant was offered access to the Pilot RRT Legal Advice Scheme (NSW) but the offer was declined. Consent orders were made requiring the applicant to file and serve an amended application giving complete particulars of each ground of review to be relied upon by 1 March 2005.
i)On 10 December 2004 the respondent’s solicitors, Blake Dawson Waldron, forwarded to the applicant a letter confirming the timetable established by the Registrar and reminding the applicant of the need to file an amended application and any affidavit material by 1 March 2005.
j)
On 1 April 2005 the respondent’s solicitors wrote to the applicant indicating they had not received an amended application in accordance with the orders of the Registrar made on
25 November 2004.
Respondent’s application
Mr I Muthalib, Solicitor, appearing for the respondent in the substantive matter, sought leave to file in Court an affidavit prepared and affirmed by him on 3 June 2005 (“the affidavit of Mr Muthalib”). Attached to the affidavit and marked “A”, “B” and “C” were copies of correspondence forwarded to the applicant in respect of compliance with the Court orders. It was submitted that the applicant’s original application filed on 12 November 2004 contained the following grounds:
1.I meet the refugee criteria.
2.I fear of being jailed because I belong to a particular social group - Falun Gong.
3.My fear is well-founded because Chinese Government still suppress Falun Gong practitioner.
That was the full extent of the claim being made in the application and was not supported by any particularisation or supporting affidavit.
In the affidavit of Mr Muthalib there was a letter forwarded to the applicant by the respondent’s solicitors dated 10 December 2004 and marked with an “A”. Attached to the letter was a copy of the Court Book which had been prepared and filed in accordance with the Court’s instructions. This was couriered to the applicant’s nominated address. The letter repeated details of the timetable that had been set out in the Court orders made on 25 November 2004 and in particular reminded the applicant of the requirement to file the amended application and any supporting material by 1 March 2005. The affidavit of Mr Muthalib contained the statement that there was no record of which the deponent was aware that any of the material was returned to the deponent or to the respondent’s solicitors’ firm.
The respondent moved that the applicant had failed to disclose the ground of review and had failed to comply with the Court orders to file an amended application. The respondent sought for the matter to be dismissed for these reasons.
Applicant’s submissions
When the applicant was invited to make submissions in response to the Motion before the Court, he initially indicated that he was hoping to obtain documents from the People’s Republic of China which confirmed his involvement in the practice of Falun Gong. Although some time was spent explaining to the applicant the nature of the proceedings currently before this Court and the limited nature of what was being considered in respect of the applicant’s application, the applicant, through the interpreter, indicated that he did not wish to make any further comment to the Court.
Reasons
In the Tribunal’s decision under the heading of “Findings and Reasons”, the Tribunal effectively summarised its findings as follows:
“The applicant’s claims are entirely dependent upon an acceptance of him as a credible witness. The applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker. The Tribunal does not accept the applicant as credible and consequently rejects all of his claims. The Tribunal does not accept that the applicant was a Falun Gong practitioner or that he fears harm as a member of a particular social group, namely Falun Gong, or for reasons of actual or imputed political opinion, or religion, or indeed any Convention reason, or at all.” (CB p.67)
The applicant had indicated during the directions hearing before the Registrar that he did not wish to participate in the Pilot RRT Legal Advice Scheme (NSW). The applicant had attended the Tribunal hearing and responded to questions put to him by the Tribunal member although the Tribunal did not find him to be a credible witness. The applicant had also attended Court in respect of this hearing. However, other than these attendances the applicant has done very little to demonstrate his desire to prosecute his claim. Time was spent in Court explaining to the applicant the nature of the proceedings and what was expected from the applicant in order to prosecute his claim. It was also explained to the applicant the nature of the respondent’s application currently before the Court and the consequences should that applicant succeed. A further invitation was extended to the applicant to make submissions in respect of the proceedings at this point and any issues in respect of their future. The applicant declined to make any submissions.
The applicant in these proceedings is self represented and has made no oral submissions other than to repeat that he believes he is a refugee based on his adherence to the Falun Gong philosophy. The grounds in his original application did not disclose any cause of action and were unparticularised. However, where an applicant is self represented the Court must independently consider whether an arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors.
Based on the material contained in the Court Book and the original application, there was nothing to indicate that the applicant could succeed at a final hearing if he were permitted to proceed further. Despite my efforts to explain to the applicant the nature of the proceedings and what is required for the matter to proceed, the applicant has not indicated any real desire or commitment to attempt to further prosecute his claim. Consequently, as the applicant has not disclosed an arguable ground of review, I believe 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 7 June 2005
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