SZEWN & Ors v Minister for Immigration

[2007] FMCA 279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEWN & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 279

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – applicants claimed political persecution in India – judicial review application dismissed by consent of both parties.

PRACTICE AND PROCEDURE – Motion for reinstatement of judicial review application – whether sufficient explanation was advanced for the delay in seeking to set aside the dismissal order.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 425, 477, 483A
Federal Magistrates Court Rules 2001 (Cth), r.16.05(2)(c)

Kosi v Minister for Immigration [2003] FMCA 340
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Guo Wei Rong (1997) 191 CLR 59
NAAH v Minister for Immigration (2002) FCA FC 354
NACA v Minister for Immigration [2003] FCA 659
NAIJ v Minister for Immigration [2002] FMCA 225
NALE v Minister for Immigration [2003] FMCA 366
NARE v Minister for Immigration (2004) FCA 554
SZDFO v Minister for Immigration (2004) FCA 1192

Applicants: SZEWN, SZEWO, SZEWP, SZEWQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2127 of 2004

Judgment of: Lloyd-Jones FM

Hearing date: 18 December 2006

Delivered at: Sydney

Delivered on: 9 March 2007

REPRESENTATION

Advocate for the Applicants: The applicants appeared in person with the assistance of a Gujarati interpreter

Advocate for the Respondent: Mr Bird

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2. The Notice of Motion filed on 24 November 2006 is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2127 of 2004

SZEWN SZEWO SZEWP SZEWQ

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. This matter was brought before the Court by the applicants as a Notice of Motion seeking to have the orders made on 17 July 2005 set aside. On that date, orders were entered dismissing the application with consent of both parties. I will treat the present application as an application made pursuant to r.16.05(2)(c) of the Federal Magistrates Court Rules 2001 (Cth) ("the Rules") seeking to vary or set aside an order of this Court.

2. This was an application for review of the decision of the Refugee Review Tribunal ("the Tribunal"). The decision made on 6 August 2003 and handed down on 3 September 2003, affirmed a decision of the delegate of the respondent made on 24 September 2002, refusing to grant the applicants a Protection (Class XA) visa. The proceedings in this Court were commenced by an application under s.39B of the Judiciary Act invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the Tribunal decision. The application was filed in the Sydney registry of the Federal Magistrates Court of Australia on 12 July 2004. The applicants seek unstated relief against the decision of the Tribunal.

3. The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZEWN” (applicant husband), “SZEWO” (applicant wife), “SZEWP” and “SZEWQ” (applicant children).

4. A Court Book (“CB”) prepared by the respondents’ solicitors was filed and served on 17 September 2004 and is marked as Exhibit “A” in these proceedings.

Background

1. The Tribunal decision of David Connolly, reference N02/44647, provides the following background information. The applicants claim to be citizens of India and formerly resided there before arriving in Australia on 2 June 2002. On 15 July 2002, they lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. On 24 September 2002, a delegate of the Minister refused togrant a protection visa and on 17 October 2002, the applicants applied for review of the delegate's decision with the Tribunal.(CB 99) Only the applicant husband made specific claims under the Refugees Convention. His family rely on membership of his family.

2. The applicant husband claims protection under the Refugees Convention because of persecution for his political beliefs by members of a fundamental Hindu organisation during 2001-2002 for his support of Muslim candidates in local government elections.  He is fearful of returning to his home town as he believes that Hindu militants will attack him.  He states that he is denied state protection because the police there protect Hindu militants.(CB 102) 

3. Prior to his departure for Australia, the applicant husband had lived in Baroda, Gujarat for most of his life.  He was a major wholesale distributor of electronic goods since 1992.  The applicant husband claims he was a member of a local group of businessmen which supported various election candidates, including Muslims, who form a large minority in Baroda.  Although he claims that he is not a member of a political party, he supported the BJP, Gujarat’s largest right of centre pro-Hindu group.  At the last elections, BJP and Bajrang Dal (a fundamentalist Hindu organisation) supporters threatened to attack the applicant husband's business group unless they excluded Muslims. As none of their candidates were elected, those threats were not carried out.(CB 102)

Litigation history

1. The application for judicial review was filed in this Court on 12 July 2004.  The matter was listed for first directions before Registrar McIllhatton on 12 October 2004.  On that occasion, the Court ordered by consent that the applicants file and serve an amended application giving complete particulars of each ground of review relied upon by

   
   

   15 November 2004.  The applicants were also required to file and serve any affidavit material containing additional evidence relied upon (including a transcript of the Tribunal hearing) by the same date.  The substantive application was listed for final hearing before me on

   
   

   14 July 2005.  The applicants were required to file and serve legal submissions and a list of authorities 14 days before that hearing.

2. On 17 September 2004, the respondents’ solicitors filed a Notice of Objection to Competency. It objected to the jurisdiction of this Court to try this application for an order under the Judiciary Act in relation to a decision under the Act. The respondents rely on s.477(1)(a):

   An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

   This Notice was supported by an affidavit sworn by John Bird, a solicitor employed by Phillips Fox who had care and conduct of this matter on behalf of the respondents. The Tribunal notified the applicants of its decision by letter dated 3 September 2003; copies of that correspondence are annexured to Mr Bird’s affidavit as well as in the Court Book.(CB 94) The application for judicial review, filed on 12 July 2004, was not filed within 28 days of the Tribunal decision as required by s.477(1)(a) of the Act.

3. On 1 July 2005 a further affidavit of Mr Bird (sworn on 30 June 2005) was filed in these proceedings.  That affidavit contained the following information:

   a)On 17 September 2004, a Court Book containing information and documents relating to the application were filed in these proceedings.

   b)At first directions, the applicants indicated that they wished to participate in the Court's Legal Advice Scheme.  A panel member was subsequently allocated to provide the applicants with legal advice.  A copy of the hearing tapes and the Court Book were sent to the adviser.  Mr Bird attached supporting documentation to his affidavit.

   c)On 11 January 2005, Mr Bird forwarded a letter to the applicants indicating that a particularised amended application had not been filed in accordance with the previous Court orders.  That letter indicated that if the amended application was not filed and served within 10 days, the respondents would seek to have the matter listed for a non-compliance hearing before the Court.

   d)On 3 June 2005, Mr Bird forwarded a letter to the applicants stating that the matter was listed for a non-compliance hearing on 5 July 2005 at 10.00am. 

   On 5 July 2005, the proceedings were adjourned to 14 July 2005 for final hearing.  The applicants were instructed to file and serve any further documents relied upon by 8 July 2005. On 13 July 2005, draft orders were forwarded to the Court executed by both parties indicating that by consent the application be dismissed and the applicants were to pay the respondent's costs fixed in the sum of $3225.  The Court registry entered those orders on 14 July 2005.

Application to set aside the orders

1. For the purpose of this Notice of Motion, the applicants filed an application and an accompanying affidavit of the applicant husband sworn on 24 November 2006 ("the affidavit of the applicant husband").  I admit those documents into evidence. 

2. This Notice of Motion has been treated as an application made pursuant to the r.16.05(2)(c) of the Rules seeking to set aside an order made by this Court on 17 July 2005.

3. The applicant husband's affidavit, besides giving background material, submits the following information in support of his Notice of Motion:

   (4)  I asked the Honourable Court to reinstate the proceedings.  I am still very apprehensive to return to India.

   (5) I wanted engage the services of a lawyer so that our claims are properly ventilated before the Court.  However, closer to the time of the hearing I could not secure enough finances to obtain the services of a lawyer.

   (6)  I have previously requested that the matter be discontinued because I was concerned of the costs and due to the confusion as to the status of my application and what could be done in the circumstances.  I am still unfamiliar with the Court and am trying to work out what was the best course.  This was also contributing to my consenting to withdrawing the action.

   (7)  I believe that my affidavit explains my circumstances agreeing to discontinue the matter.

   (8)   I do not believe that many aspects of my claim were properly looked at by the delegate or the Tribunal.  I ask the Honourable Court to deal with one matter so that all of my circumstances could be properly looked at by this Court. (copied without alteration or correction)

4. When the applicant husband was invited to make oral submissions, he indicated that he had new documents in his possession recently received from India, which he said showed that his life would be difficult if he returned to India.  The applicant husband also said that his financial circumstances had marginally improved and he was able to commence repayment of his debt to the Department.  He did not have any submissions to make in respect of the substantial delay in filing the Notice of Motion.

Submissions and reasons

1. The applicants are inviting the Court to undertake merits review of both the delegate's and the Tribunal's decision.  The limited material in the original application and the submissions made by the applicant husband from the bar table are no more than a request for merits review which is unavailable in this Court: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:

   …any Court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

   Merits review is an assessment of the appropriateness of the decision as distinct from judicial review which focuses on the lawfulness of the earlier decision.  Judicial review asks whether the decision-maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances.  Merits review provides a complete rehearsal of all the issues relevant to the application.  The reviewing body considers the relevant material as well as any new evidence.  This is what the applicants are inviting the Court to do and I spent some time during the hearing endeavouring to explain this distinction to the applicant husband and why the Court would not do so.  This was explained recently by Allsop J in SZDFO v Minister for Immigration (2004) FCA 1192 and NARE v Minister for Immigration (2004) FCA 554 and also by the Full Court in NAAH v Minister for Immigration (2002) FCA FC 354.

2. The other significant issue in this matter is the length of delay between the date the matter was dismissed by consent and the filing of the Notice of Motion seeking to have that order set aside.  The delay was in excess of 16 months.  Also important in my consideration is that the applicants consciously consented to the dismissal of their application.  Most of the authorities address a situation where an applicant does not immediately pursue judicial review of a Tribunal's decision until a considerable amount of time has passed.  These applicants are in a different circumstance.  They had elected, after filing their application, to participate in the Court’s Legal Advice Scheme and were given an opportunity to file an amended application after receiving that advice.  The applicants elected not to proceed with their case and consented to the dismissal of that application.

3. The Court recognises the difficulties faced by the self-represented litigant appearing in Court with an interpreter.  This is made more difficult because the applicants are involved in proceedings in a legal system of which they have little or no knowledge or understanding.  The applicants, through the Court-sponsored scheme, were provided with some guidance about the conduct of the hearing and the issues they were required to address.  The applicant husband did not make formal submissions explaining the reason for their withdrawal other than a general comment about financial difficulty which meant that they was unable to retain a legal adviser and were reluctant to proceed.

4. The Court has been sympathetic to applicants who delay seeking judicial review of Tribunal decisions.  However, the applicants have not been denied judicial review.  They elected, on their own volition, to withdraw and abandon that review.

5. A matter of significance is whether the applicants have any prospects for success if the orders previously made are set aside: NACA v Minister for Immigration [2003] FCA 659; NAIJ v Minister for Immigration [2002] FMCA 225 per Raphael FM. The first respondent submits that the applicant has not shown an arguable case that the Tribunal decision should be quashed on the ground of jurisdictional error. The applicants were put on notice that the Tribunal could not make a favourable decision on the material before it and, in accordance with s.425 of the Act invited them to a hearing. The applicants accepted the invitation to the hearing and the applicant husband gave oral evidence. The application to the Tribunal for review contained the same statement that was submitted with the original visa application (CB 52-53; 81-82). This was signed by the applicant husband and is referred to in the Tribunal application.(CB 79) The Tribunal notes that the applicant husband's written submissions were vague and lacked substance and were only marginally improved by oral evidence provided at the hearing.

6. The Tribunal also notes the applicant husband appears to have embellished his account of his circumstances.  The Tribunal did accept that he held a number of lucrative contracts but that a major fire resulted in the destruction of his building and its contents.  The Tribunal could not accept the claim that he had not complained to the police about the fire which he claims was deliberately lit in retaliation to his support of a Muslim candidate in the local elections.

7. The Tribunal also declined to accept the applicant husband's inability to relocate and that the family were able to depart India for Europe and return without seeking protection.  Further, the willingness of the applicants to remain in Gujarat until their sons completed school year exams in April.  The Tribunal concluded that the applicants were not persons to whom Australia had protection obligations under the Refugees Convention.

8. It is for an applicant to satisfy the Tribunal that the statutory elements for the grant of a visa have been established:  Minister for Immigration v Guo Wei Rong (1997) 191 CLR 59.

9. The original application contains a number of general statements alleging jurisdictional error, none of which are particularised.  When the applicant husband was asked whether he had attempted to file an amended application, he said that he had not.  He said that he unsuccessfully sought legal assistance in the preparation of the amended application and submissions in accordance with the Court orders.  It was pointed out to the applicant that the assistance that was available had been provided and this was the extent of the assistance available.  In the absence of specific pleadings identifying jurisdictional error, I have examined the Court Book and Tribunal decision.  It is not immediately apparent that any jurisdictional error appears on the face of those documents.  Consequently, I am satisfied that the applicant has little prospects for success in establishing that the Tribunal decision contains jurisdictional error, if the previous orders of this Court were set aside.

10. The extensive delay between the date of the consent orders and the application to have those orders set aside would be an abuse of the Court's process if it was made for the purpose of extending one’s stay in Australia.  I have no doubt that the applicants wish to stay in Australia.  It is well-known that there are now extensive delays in obtaining hearing dates in migration cases in this Court.  There is potential for the Court process to be abused by an applicant whose only purpose is to take advantage of that delay: Kosi v Minister for Immigration [2003] FMCA 340; NALE v Minister for Immigration [2003] FMCA 366. The applicant's affidavit filed on 24 November 2006 contains one brief statement explaining the delay:

    6. I have previously requested that the matter be discontinued because I was concerned of the costs and due to the confusion as the status of my application and what could be done in the circumstances.  I am still unfamiliar with the Court and was trying to work out what was the best course.  This was contributing to my consenting to withdrawing to action.

11. I accept that this may be of concern to the applicants.  However, considerable time has passed since the matter was withdrawn and the application has been brought with little or no change in those circumstances.  Even if I were to set aside the previous orders and grant the applicants a final hearing, I do not believe that the outcome is likely to change.

Conclusion

1. If the application were to be reinstated, the applicants’ prospects for success are limited.  The ultimate result is that this application has no reasonable prospects for success.  In the circumstances, I believe the notice of motion should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.  I order the applicant is to pay the respondent's costs and expenses of and incidental to the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  8 March 2007