SZEZC v Minister for Immigration
[2005] FMCA 586
•3 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEZC v MINISTER FOR IMMIGRATION | [2005] FMCA 586 |
| MIGRATION – Practice and procedure – application for judicial review of Refugee Review Tribunal decision – application dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for the applicant’s failure to comply with orders of the Court. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X
Federal Magistrates Court Rules 2001 (Cth), r.13.03(2)(b)
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEZC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2339 of 2004 |
| Delivered on: | 3 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 3 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms S Koya of Phillips Fox |
ORDERS
The application be 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 dated 26 October 2004.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2339 of 2004
| SZEZC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by the applicant under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 23 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 May 2004 and handed down on 22 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
5 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 “SZEZC”.
The applicant, who claims to be a national of the People’s Republic of China, arrived in Australia on 24 February 2004. On 3 March 2004 she 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.1-27) (“CB”). On 8 March 2004 the delegate refused to grant a protection visa (CB pp.30-42) and on 13 April 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.43-47).
In her primary application, the applicant claimed she was attracted to Falun Gong for health reasons rather than spiritual ones. The applicant claimed she defied the 1999 banning of Falun Gong by disseminating Falun Gong pamphlets in January 2002 and was detained for 20 days as a result. The applicant claimed she was released on conditions and monitored. She claimed she worked in the same job without interruption from 1975 to 2003 and lived without interruption at the same address from 1994 until the time she came to Australia (CB p.62).
Litigation history
A brief summary of the litigation history of this application is as follows:
a)On 23 July 2004 the applicant filed in the Federal Magistrates Court of Australia an application under s.39B of the Judiciary Act 1903 (Cth) for a review of the Tribunal’s decision ;
b)On 26 October 2004 the matter was listing for directions before a Registrar. On that date 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 the applicant together with any evidence upon which the applicant proposed to rely by 11 January 2005;
c)At the directions hearing (26 October 2004) the applicant was offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW). However, this offer was declined;
d)
The applicant failed to comply with the orders of the Court made by Registrar McIllhatton on 26 October 2004 requiring an amended and fully particularised application to be filed by
11 January 2005;
e)On 4 February 2005 this matter was referred to the Court Registry for listing in the non compliance list;
f)On 19 April 2005 an affidavit sworn by Stella Koya was filed and served. This affidavit contained details of the correspondence forwarded to the applicant, indicating that the applicant had failed to comply with the Court orders of 26 October 2004 and notifying the applicant that if an amended and fully particularised application was not filed by 30 January 2005, the respondent’s solicitors would seek to have the matter listed for a non compliance hearing with a view to having the application summarily dismissed.
Respondent’s application
Ms S Koya, Solicitor, appearing for the respondent in the substantive matter, applied for an affidavit of 19 April 2005 to be read into evidence. Ms Koya assisted the Court with oral submissions in support of her application. It was submitted that the originating application filed in the Federal Magistrates Court on 23 July 2004 contained the following ground:
“I face persecution from my original country because I belong to a particular social group – Falun Gong.”
That was the full extent of the claim being made in the application and was not supported by any particularisation or affidavit.
As indicated in the chronology above, the applicant attended a directions hearing on 26 October 2004 and consented to orders requiring her to file and serve an amended application with supporting documentation. That order was not complied with. The respondent’s solicitors forwarded a letter to the applicant, a copy of which is attached to the affidavit of Ms Koya and marked with the letter “B”. The letter drew to the applicant’s attention the fact that the respondent’s solicitors had not received an amended application by the nominated date of 11 January 2005 and indicated that if they did not receive a fully particularised amended application by 30 January 2005, they would proceed to have the matter listed for a non compliance hearing seeking that the matter be summarily dismissed.
Attached to the affidavit of Ms Koya was a letter dated 13 April 2005 and marked with the letter “C” advising the applicant that the matter had been listed in the Federal Magistrates Court for a non compliance hearing on 3 May 2005 at 10.30 a.m. and advised the applicant of the application they would be making on that date.
Applicant’s submissions
When invited to respond to the Motion before the Court, the applicant did not make any submissions other than to make a claim that she did not understand the proceedings of the Court.
Reasons
The applicant in these proceedings was self represented and made no oral or written submissions. The applicant was assisted by a Mandarin interpreter during the proceedings before me and the Court file indicated that a Mandarin interpreter was present at the directions hearing. The grounds in the applicant’s original application were vague and unparticularised. However, where an applicant is self represented 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.
In the absence of any appropriate pleadings, I have read the Court Book filed by the respondent’s solicitors and in particular the decision of the Tribunal handed down on 22 June 2004. Attached to the original application was a double spaced typed statement of one and a half pages which was provided by the applicant and set out her claims (CB pp.26-27). Contained within that statement, the applicant provided a brief history of her adherence to the practice of Falun Gong and the consequences of that practice once the practice was outlawed by the Chinese Government in 1999. The applicant gave a brief explanation of why she commenced Falun Gong and persevered with its adherence after its ban. She also gave a brief explanation of how she exited China before arriving in Australia. The same statement was attached to the applicant’s application for a review by the Tribunal in a re-typed format, being in the form of a single spaced, one half typed page of three paragraphs.
On 28 April 2004 the Tribunal wrote to the applicant indicating that it had considered the material before it in relation to her application but was unable to make a decision in her favour based on the information. The applicant was invited to attend a hearing of the Tribunal on 27 May 2004 in order to deliver any oral evidence or provide other witnesses to assist her during that hearing (CB pp.48-49). The applicant was requested to forward a “Response to Hearing Invitation Form” but failed to do so. The Tribunal detailed the circumstances in its decision:
“The Tribunal wrote to the Applicant informing her it was unable to arrive at a decision favourable to her on the basis of the material in her file alone and inviting her to attend a hearing before it on 27 May 2004. The evidence before the Tribunal indicates that the Tribunal’s registered letter was collected at the address provided by the Applicant; it was not returned unclaimed. The Tribunal checked that the Applicant’s address details were correct and up to date. It is open to the Tribunal to infer that the Applicant does not wish to give further evidence in the present matter, even though the Tribunal has clearly indicated what the possible implications of such a position might be. The Tribunal will now proceed to a decision on the material before it.” (CB p.59)
With very little material before the Tribunal, this being limited to the statement referred to above, and the applicant declining to attend a hearing to make oral submissions, the Tribunal was dealing with an applicant who had provided scant information in respect of her claim. The Tribunal drew the following conclusion:
“The Applicant’s evident lack of interest in speaking to claims about such a potentially critical matter leads the Tribunal to conclude that she is not at all sincere about those claims. She is not a reliable witness in the present matter.” (CB p.63)
The applicant appeared at a directions hearing before Registrar McIllhatton on 26 October 2004. During that hearing the applicant was offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) to assist her in the preparation of her pleadings and submissions for the future carriage of her application. This offer was declined.
When the applicant appeared in this Court and was invited to make submissions in support of her application, she indicated she did not wish to say anything. Some time was spent explaining to the applicant the status of her application and pleadings and the resultant difficulty for it to proceed without input by the applicant or someone on her behalf. When the applicant indicated that she had some difficulty in understanding what was being said it was indicated that that was the purpose of the interpreter being supplied by the Court at each of her appearances in Court and that the interpreter service was there to assist with any potential language problems.
Based on the material contained in the Court Book, the original application and the absence of any other material, there is nothing to indicate that the applicant could succeed at a final hearing if she were permitted to proceed further. Consequently, as the applicant has not disclosed any arguable ground for review, I believe that 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 seventeen (17) 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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