SZFKR v Minister for Immigration

[2005] FMCA 1959

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFKR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1959

MIGRATION – Practice and procedure – belated raising of discretionary issue by Minister – adjournment of hearing and referral for legal assistance.

Federal Magistrates Court Rules 2001, Pt.12

Minister for Immigration & Multicultural & Indigenous Affairs vKhawar (2002) 210 CLR 1
SZEAS v Minister for Immigration (2005) FMCA 1776

Applicant: SZFKR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 49 of 2005

Judgment of: Smith FM

Hearing date: 21 December 2005

Delivered at: Sydney

Delivered on: 21 December 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.

2. The hearing of the matter is adjourned to 7 April 2006 at 10.15 am at Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney.

3. The first respondent must file and serve an affidavit relating to the issue of the applicant’s delay in commencing the present proceeding, and any other affidavits, by 31 January 2006.

4. The applicant must file all affidavits in relation to that issue by 13 March 2006.

5. The applicant has leave to file a further amended application by 13 March 2006.

6. Any further submissions by the applicant must be filed and served 14 days before the hearing.

7. Any further submission by the first respondent must be filed and served 7 days before the hearing.

8. Pursuant to Rule 12.03(1) the applicant is referred to the Registrar for referral to a lawyer on the pro bono panel for legal assistance, including in relation to one or more of the following:

   (i)the preparation of affidavits;

   (ii)the preparation of an amended application and written submissions;

   (iii)representation of the applicant at the resumed hearing.

9. Costs incurred by either party in relation to today’s adjournment are their costs in the proceeding.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 49 of 2005

SZFKR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In this matter the applicant arrived in Australia in 1993, and since then has been attempting to establish permanent residence with her son who is a citizen of Australia.  She recounted circumstances in her previous life in Morocco which were tragic, involving the death of her husband and a second son in a motor vehicle accident, the loss of her home and business, and being subjected to violent attack by a relative against whom she claimed she received no protection from the police.

2. The truth of the facts which she claimed was accepted by the Refugee Review Tribunal in a decision handed down on 9 March 1998. However, it affirmed a decision of a delegate refusing her a protection visa. 

3. The Tribunal's reasoning causes me some provisional concern.  In particular, I am concerned that the Tribunal may have too narrowly assessed the claims made by the applicant, without appreciation of the need to address such claims according to the High Court's reasoning in Minister for Immigration & Multicultural & Indigenous Affairs vKhawar (2002) 210 CLR 1 in relation to unsupported women at risk of domestic violence. It appears arguable that the Tribunal has failed to address a claim that the fears of the applicant arise by reason of her membership of a particular social group (see also the authorities discussed recently by me in SZEAS v Minister for Immigration (2005) FMCA 1776). These lines of authority occurred after the Tribunal’s decision in this case, but the validity of its decision will need to be assessed in the light of their discussion of this element in the Convention definition of “refugee”.

4. An amended application which the applicant has filed seems to raise this ground, but the applicant has not had legal assistance to present any arguments in support. She has appeared at the hearing today assisted only by a lay helper and her son, and the written submission which they have tendered does not, in my opinion, adequately present her case. I consider that she is in special need of further legal assistance to help her present that case. However, that need would not alone normally cause me to adjourn the hearing and make a referral under Part 12 of our Rules.

5. The added reason for my deciding to take this course is a contention raised for the first time in a written outline of submission prepared by counsel for the Minister and posted to the applicant on 13 December 2005.  It is there contended that, even if jurisdictional error is established, relief should be refused in the discretion of the Court by reason of her delay in commencing the proceeding.

6. The applicant tells me that this was not received by post until last Friday.  This allowed her only two clear working days to attempt to understand and respond to the Minister’s contention.  The contention will require her to give evidence explaining in detail every step she has taken between 1998 and 2005 to keep alive her claim to a protection or other visa. 

7. The Minister has not filed any evidence concerning her activities in that period, although it is apparent to me from some documents tendered by the applicant that there is a long history, including extensive correspondence with the Minister and her predecessors, and previous litigation including protracted litigation in the High Court of Australia.  This is, no doubt, fully recorded in the files of the Minister’s Department, but no attempt has been made to inform the Court as to what has occurred relevant to the exercise of its discretion.  I consider that it is appropriate in this case for me to direct the Minister to file such evidence by way of a supplementary Court Book or affidavit.  If the applicant needs further discovery from the files, then this should also be given.

8. I consider that once that evidence has been filed it is appropriate for the applicant to have the opportunity to get legal advice to help her prepare a properly considered affidavit, explaining her circumstances over those years and explaining any element of hardship or other consideration which might be relevant to the Court exercising its broad discretion on whether to refuse relief, taking into account the whole circumstances in the case and the general interests of justice.

9. The applicant attempted to meet the belated raising of this point by the Minister, by today tendering some correspondence with the Minister's office.  However, it is apparent to me that the correspondence is incomplete, and would not properly allow the Court to understand what has been happening over all those years.  I consider that the applicant would be seriously disadvantaged if the matter proceeded today on that issue, particularly since it appears that it will be energetically pursued by the Minister through cross-examination.  The applicant’s evidence needs proper preparation, and I consider that she will be seriously disadvantaged on this issue if she is without legal assistance at the adjourned hearing. 

10. In all the circumstances, I consider that an adjournment and referral of the applicant under r.12.03(1) is appropriate in the interests of the administration of justice.

11. These are my reasons for making orders which I shall now formulate.  At the request of the Minister’s counsel, I direct that a transcript be prepared of my judgment, revised and posted to the parties.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  10 January 2006