SZFCP v Minister for Immigration
[2006] FMCA 455
•10 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFCP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 455 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory application for summary dismissal – interlocutory application upheld. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.03, 13.10 Federal Magistrates Court Act 1999 (Cth), ss.14, 15 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.483, 91X, 426A |
| Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 Chung v University of Sydney [2001] FMCA 94 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Miller v Wertheim & Anor [2001] FMCA 103 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 Webster & Anor v Lampard (1993) 177 CLR 598 Xie Wei Ming v Immigration Department (1999) FCA 365 |
Applicant: | SZFCP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3457 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 30 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2006 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Advocate for the Respondents: | Ms E Palmer |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The proceeding is dismissed pursuant to r.13.03 of the Federal Magistrates Court Rules 2001(Cth) on the basis that the applicant has failed to comply with orders of the Court.
Further, the proceedings are dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that no reasonable cause of action is disclosed in relation to the proceedings.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3457 of 2004
| SZFCP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The respondents seek an order that the application be dismissed pursuant to jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Court Act 1999 (Cth) on the grounds that:
a)An order that the proceedings be dismissed pursuant to r.13.03 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the applicant has failed to comply with orders of the Court.
b)Further, or in the alternative, an order that the proceedings be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules on the basis that no reasonable cause of action is disclosed in relation to the proceedings or claims for relief.
In support of that application, the respondents’ solicitors filed an affidavit of Zoe Elizabeth Brauer, solicitor, sworn on 24 March 2006 (“affidavit of Ms Brauer”) and seek that the affidavit be admitted into evidence.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney registry of the Federal Magistrates Court on 25 November 2004 for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 September 2004 and handed down on 22 October 2004, affirming the decision of the delegate of the first respondent (“the delegate”) made on 21 May 2004, refusing to grant a Protection (Class XA) Visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFCP”.
The applicant has not sought to join the Tribunal as a party, however, given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision contains the following background information. The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 24 February 2004. On 3 March 2004, she lodged an application with the Department, under the Act, for a Protection (Class XA) Visa. On 21 May 2004, a delegate of the first respondent refused to grant a protection visa and on 22 June 2004, the applicant applied for review of that decision (Court Book (“CB”) 57).
The applicant’s protection visa application indicated that she is 42 years of age. She is married, although no details of the date or place of the marriage or any family members are provided. The applicant was born in and has lived in Shenyang, Liaoning all her life. Following the completion of nine years of education, she worked as a cashier in a shop from 1979 to 1984, and in a factory from 1984 to 1999. The applicant indicated that she does not belong to a religion (CB 59).
Applicant’s claim
In the Tribunal decision under the heading “Claims and Evidence”, the applicant’s claims were briefly set out as follows. The applicant claimed that while working as a cashier in a factory in the summer of 2001, she promoted Falun Gong to her friends. In September 2001, the head of the city’s Public Security Bureau (“PSB”) brought policemen to the applicant’s home. She was arrested and sentenced to nine months imprisonment. The applicant described her physical mistreatment by a named policeman during her nine months imprisonment. Following her release from detention, the applicant resumed her Falun Gong practice. Fearing further imprisonment, she bribed a government official to obtain a passport (CB 60).
The tribunal’s findings and reasons
In the Tribunal’s brief decision, it indicated that it wrote to the applicant on 13 August 2004, advising her that the material available to it was insufficient to make a favourable decision. The Tribunal invited the applicant to appear before it at a formal hearing in order to obtain further information to determine the veracity of her claims. The Tribunal received no response to its invitation and there was subsequently no appearance by the applicant at the scheduled hearing.
In its decision, the Tribunal listed a number of issues for which it sought explanation (CB 61-62). It proceeded with its deliberation pursuant to s.426A of the Act and came to the conclusion that it could not be satisfied that the applicant adhered to Falun Gong or that she had been subject to the adverse attention of Chinese authorities. Nor were there any past or current circumstances which would give rise to a well-founded fear of persecution, within the meaning of the Refugees Convention, in the reasonably foreseeable future. Consequently, the Tribunal found the applicant was not a person whom Australia had protection obligations under the Convention and was therefore ineligible for a protection visa (CB 60-62).
Application review of the tribunal’s decision
On 25 November 2004, the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.I am a genuine Falun Gong practitioner and I will be prosecuted by Chinese Government if I return to China.
2.I had been put into jail by the Chinese Government when I was in China just because I am a Falun Gong practitioner. On 11 September 2001 the head of the Public Sercurity Bureau in Shenyang City brought a group of policemen to my home. I was arrested and unlawfully sent to Tiexi Detention Center. On 30 September 2001, I was illegally sentenced to nine months in the Shenyang City No 2 Prison. While in the prison there, I was brutally tortured.
On 6 December 2004, the applicant appeared before Registrar McIllhatton who made orders amongst which was an order that the applicant file and serve an amended application giving complete particulars of each ground for review relied upon, by 21 February 2005. A review of the Court file does not disclose whether this order was complied with.
The applicant appeared before me for the first time on 2 August 2005 at a directions hearing where I made orders that she had leave to file and serve an amended application giving complete particulars of each ground for review relied upon by 3 October 2005. On 5 October 2005, the applicant filed a document entitled “Amended Application” which does not contain any grounds for review, but contains the following statement:
The applicant claims:
I am a Falun Gong practitioner when I was in China.
In the summer of 2001, I told my friends to follow the principles of “Truthfulness, Compassion and Forbearance”, which are the guiding principles of Falun Gong.
On the afternoon of 11 September 2001 the head of the Public Sercurity Bureau in Shenyang City brought a group of policemen to my home. I was arrested and unlawfully sent to Tiexi Detention Centre.
On 30 September 2001, I was illegally sentenced to nine months in the Shenyang City No 2 Prison.
While in the prison there, I was brutally tortured.
Policeman Haiding Zhang was a very vicious individual. He had beaten practitioners many times.
That nine months seemed like an eternity…I felt as though I had just emerged from hell.
After my release, I immediately began practicing the Falun Gong exercises again. My body quickly recovered.
I understand that I would face a more serious danger of being prosecuted and a risk of being jailed simply because I am a Falun Gong follower.
I bribed 50,000 RMB to a government official to issue a passport for me.
The applicant appeared before me for the second time on 15 November 2005. On that occasion, I adjourned the matter to 3 March 2006 and granted the applicant leave to file an amended application after I explained to her that her current pleadings revealed no grounds for review. On 31 January 2006, the applicant filed a document headed “Amended Application”, which contained the following information:
The applicant claims:
The decision involved an error of law: The decision involved an important exercise of the power conferred by the Migration Act and Regulations.
Even the Tribunal Member pointed out that the evidence I provided is limited in paragraph 5 of page 7 of the decision record of Refugee Review Tribunal, he make mistake in that: I am not a Falun Gong practitioner. But I am a genuine Falun Gong practitioner.
I will be prosecuted by Chinese Government if I return to China.
My fear of persecution is well-founded because of my past circumstances.
Respondent’s interlocutory application
On 24 March 2006, the first respondent filed an interlocutory application seeking dismissal of the applicant’s application for judicial review of the Tribunal’s decision affirming the decision of a delegate of the Minister to refuse the applicant a protection visa. The first respondent sought that the application be dismissed pursuant to r.13.03(2)(b) of the Rules for non-compliance with the Court’s orders. The Court has ordered on three separate occasions that the applicant file and serve an amended application giving complete particulars of each ground of relief relied upon.
Ms Palmer, for the first respondent, submitted that the applicant did not file an amended application giving particulars of grounds for review in the 16 months available for her to do so. The two documents filed by the applicant entitled, “Amended Application” are without substance and fail to raise an arguable case or a real question to be tried. The applicant failed to avail herself of the opportunity to benefit from legal advice available to her pursuant to the Court’s “RRT Legal Advice Scheme”. Further, the applicant has not offered any explanation for her failure to actively pursue her application by way of written submissions as ordered by the Court on 3 March 2006. She put nothing forward to show any utility in being given more time to comply with the Court’s orders.
The first respondent submitted that there was no reasonable basis to the application.
Ms Palmer sought that the Court exercise its discretion to summarily dismiss the application for judicial review, on the grounds that no reasonable basis for the application has been disclosed. Ms Palmer requested me to consider the operation of that discretion in the following circumstances:
a)The applicant’s case is “so clearly untenable that it cannot possibly succeed”; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at [129]; SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959 at [19].
b)Were the case to go to trial in the ordinary way, it is “apparent that [the application] must fail”; Webster v Lampard (1993) 177 CLR 598; see also Xie Wei Ming v Immigration Department (1999) FCA 365 at [20].
c)One can say without doubt, the whole of the material, that there is “no real question to be tried”; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at [10]; Miller v Wertheim [2001] FMCA 103; XIE v Immigration Department (1999) FCA 365 at [20].
d)The claim is “lacking in substance”; Chung v University of Sydney [2001] FMCA 94 at [18] (upheld on appeal to the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186).
e)There is “no factual substratum to support the claim made”; Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [6]; see also Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677.
The first respondent submitted that for the above reasons, the matters raised in the application disclosed no reasonable basis for the application.
Ms Palmer also submitted that if the Court were minded to treat a “bare” assertion of a legal error as disclosing a reasonable basis for the application, that despite using terminology of legal error, the grounds raised were hopeless.
Ms Palmer then made submissions considering whether or not the Court should exercise its discretion to grant summary dismissal on the ground that no reasonable basis for the application is disclosed and the applicant is unrepresented. It was submitted that a court will not limit itself to an argument put forward by the applicant but must independently consider whether an arguable case based on the material could be made out: Chung v University of Sydney at [7]-[14]. The first respondent submitted that no arguable case is apparent on the material. The Tribunal invited the applicant to a hearing before it by way of invitation sent to the address provided by the applicant, but the applicant did not attend. The Tribunal was not satisfied that applicant’s claims were true and accordingly refused the application. The first respondent relied on the Full Federal Court decision of NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 per French, Emmett and Dowsett JJ at [5]:
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application. (emphasis added)
Ms Palmer submitted that the Tribunal decision is not affected by the reasoning of the Full Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. The reason for the Tribunal decision was the paucity of information before it. In SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 per Allsop J at [29]:
The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
Reasons
Ms Palmer, for the first respondent, indicated that she relied upon her application, outlines of submission and the affidavit of Ms Brauer for the purpose of this application.
The applicant appeared as a self-represented litigant with the assistance of a Mandarin interpreter. The applicant did not file any submissions in respect of her application. When the applicant appeared before me on 3 March 2006 for directions, the first respondent’s solicitors foreshadowed the nature of the application it wished to make today. It was sufficiently explained to the applicant the reason for application. The applicant was informed that she would be required to satisfy the Court that there were grounds of review which warranted the matter going to a full hearing. I acknowledge that where there is a self-represented litigant, the Court has an obligation to independently consider whether there are any grounds of review and this obligation is clearly set out in Yo Han Chung v University of Sydney.
The applicant indicated that she had not prepared any written submissions and that she did not wish to make any oral submissions in support of her application.
To satisfy the obligation on the Court to determine whether any grounds of judicial review exist which has not been identified by the applicant because of her inability to speak English and understand the Australian legal system, I undertook a review of all the material available to me as contained in the Court Book and the various submissions prepared by the respondents’ solicitors. I have considered the contents of all the pleadings made by the applicant and unfortunately they do nothing to assist her. A review of the Court Book discloses that the applicant put forward very little material to support her application. Further she did not accept the invitation to appear before the Tribunal at its scheduled hearing.
Since the original application in this Court, the applicant has changed her address on two separate occasions and complied with the requirement to file a change of address notification at the registry. None of the correspondence forwarded to the applicant has been returned. A review of the chronology of events indicates that the applicant has complied with all initial filing requirements within the nominated time limits specified in the Act. This suggests that the applicant is in receipt of correspondence addressed to her and in circumstances where there is no response, I assume that is the applicant’s intention.
The Tribunal decision is brief as would be expected where it has very little material to consider and where the applicant elected not to appear before it or provide any further requested material. The Tribunal lists in this decision the substantial issues that remain unanswered. The Tribunal complied with its obligation to write to the applicant indicating that it was unable to come to a favourable decision on the minimal material before it. It extended an invitation to the applicant to appear before it to provide oral evidence, further written submissions and call any witnesses in support of her application. In the absence of any response to its requests the Tribunal legitimately proceeded with its decision-making under the provisions of s.426A of the Act.
The Court file indicates that a panel legal advisor was allocated to the applicant on 10 December 2004. Yet the applicant failed to contact the advisor in order to proceed with a conference to review her application. During first directions before me, I explained to her through an interpreter the operation of this scheme and the necessary steps that she needed to take in order to participate in it. The applicant was actively encouraged to contact the advisor and seek his advice. During the 16 months since she originally indicated her desire to participate in the scheme and despite a subsequent invitation to do so, the applicant has failed to make any contact with the nominated advisor.
I accept the submissions of Ms Palmer in support of her application for summary dismissal. I accept that the applicant has been markedly inactive in pursuing her claim and that her application poses no reasonable basis in relation to the proceedings. This application would have no chance of success at a final hearing as no jurisdictional error has been pleaded, nor identified by a review of the Tribunal decision and all supporting material.
The first respondent’s solicitors originally sought for this matter to be dismissed on 2 August 2005 on the same grounds that are currently before the Court. At that time, I declined the application and gave the applicant further opportunity to pursue her application. This was despite the applicant been giving two previous orders to file an amended application and to provide her with limited legal assistance available to self-represented litigants. I am satisfied the applicant has done nothing since that original interlocutory application despite the expiry of a further seven months.
Conclusion
I have not been able to identify that the Tribunal has committed jurisdictional error on any grounds. I am satisfied that the first respondent’s application for summary dismissal should be upheld and that the applicant’s original application for judicial review should be dismissed.
I am satisfied that an order for costs should be made in this matter. I note that since the original application was filed, the matter has been before the Court on several separate occasions and I take this into account when considering the cost order. I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,000.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 6 April 2006
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