SZGJG v Minister for Immigration
[2006] FMCA 1788
•27 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGJG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1788 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a national of Lebanon who disavowed the claim of persecution on the ground of his religion at the Tribunal hearing – where applicant did not make any other Convention-related claim – where applicant told the Court he was not a refugee – utility of application for review of Refugee Review Tribunal questioned – no Convention claim – applicant held to be without merit. PRACTICE & PROCEDURE – Abuse of process – collateral purpose. PRACTICE & PROCEDURE – Summary dismissal – where Minister’s solicitors criticised for failing to seek summary dismissal of application that clearly had no merit. PRACTICE & PROCEDURE – COSTS – Discretionary nature of costs –where costs substantially reduced – reasons. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| SAAP v Minister for Immigration Multicultural & Indigenous Affairs [2005] HCA 24 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZGJG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1329 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 November 2006 |
| Date of last submission: | 27 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as Second Respondent to the application.
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondents costs which I have fixed in the sum of $2,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SGY 1329 of 2005
| SZGJG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 12th April 2005 and handed down on 5th May 2005. The Tribunal affirmed the decision of the delegate not to grant the Applicant for a visa.
The Applicant seeks an order returning the application to the Tribunal for rehearing.
Counsel for the Respondent Minister submitted that there are two preliminary matters that need to be dealt with First, the name of the Respondent Minister should be changed to read Minister for Immigration & Multicultural Affairs. The Refugee Review Tribunal should be joined as a Respondent. Both of these submissions are correct.
The application was filed on 23rd May 2005 when the title of the Minister was Minister for Immigration Multicultural and Indigenous Affairs, but there has been a change since then. It is also appropriate for the Tribunal to be joined as a party to the application as the Applicant is seeking an order in the nature of mandamus which would affect the Tribunal if the order were made. (See SAAP v Minister for Immigration Multicultural & Indigenous Affairs [2005] HCA 24) I will make both of those orders.
Background
The Applicant is a national of Lebanon who arrived in Australia on
10th August 2004. He applied for a Protection (Class XA) visa on
9th September 2004 but it was refused on 25th November 2004.
The Applicant sought a review of that decision from the Refugee Review Tribunal. The Applicant attended a hearing of the Tribunal on 5th April 2005. The decision says 2004 but that is clearly an error.
He gave evidence with the assistance of an interpreter. The Tribunal noted that the Applicant was previously represented by a migration agent who services were dispensed with.
The Tribunal also noted that the Applicant claimed to have lodged a complaint against the agent with the Migration Agents Registration Authority. The Applicant was accompanied by his brother and
sister-in-law who also gave evidence. The Applicant had originally claimed a fear of persecution because he was a Muslim who lived in a Christian suburb and faced harassment by Christians because of his religion. At the hearing he specifically denied those claims.
The Tribunal noted, however:
The Tribunal nevertheless asked the Applicant some questions of its own in order to satisfy itself that the Applicant did not have any Convention-related claims in relation to Lebanon[1].
[1] Court Book, p.72
The Tribunal noted that the Applicant’s brother and sister-in-law gave evidence, that the migration agent had persuaded them to lodge a protection visa application merely to “buy time” for him in Australia.
The Tribunal found them to be candid witnesses who were prepared to correct the past wrongdoing into which they had been misled by the migration agent, even though this meant that the Applicant’s protection visa application could not succeed.
The Applicant seeks to remain in Australia on compassionate, public interest grounds relating to his brother’s need for him to help operate an expanding family hairdressing business. The Tribunal explained that it does not have jurisdiction to decide such claims. The Applicant understood this[2].
[2] Court Book, p.73
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons, which are understandably brief, are set out on p.73 of the Court Book. The Tribunal accepted that the Applicant was a national of Lebanon and considered him to be a credible witness. However:
After making its own inquiries, the Tribunal could find no evidence of Convention-related persecution in this case.
The Tribunal found that the application could not succeed. However, the Tribunal noted that the Applicant’s non-Convention claims may be claims that he could put before the Minister and undertook to alert the Department to the Applicant’s request that his case be considered under s.417 of the Migration Act 1958.
In the light of the Tribunal’s decision record, it is perhaps surprising that the Applicant commenced proceedings for judicial review. But he filed an application on 23rd May 2005. That application claimed that the Applicant was misled by a migration agent.
The grounds that the Applicant gave in his application may be summarised as follows:
a)The migration agent misled the Applicant and lodged an application for a different visa than the one he expected.
b)He explained his circumstances to the Tribunal and asked the Tribunal to take action against the migration agent.
c)The Applicant asks the Court to allow him to stay in Australia as he needed by his brother to assist him as a qualified hairdresser.
d)The Tribunal accepted him as a credible witness and he asks for action to be taken against his former migration agent.
e)The Applicant’s brother has lodged an application to sponsor him and he has asked for a copy of his file so he can prepare an application to the Minister.
It appears obvious that the grounds in the application do not disclose anything vaguely resembling a ground of review. Surprisingly, the solicitors for the Minister did not move the Court for summary dismissal on the basis that the application did not disclose any cause of action.
A Registrar of the Court listed the application for Final Hearing before another Federal Magistrate. The application was transferred into my docket on 1st September this year and the parties were advised accordingly.
The Applicant filed an amended application on 27th July 2005.
The grounds in that document are not much better. I will quote the verbatim:
(1) The Refugee Review Tribunal failed to ask me the proper question as to what exactly happened to me and failed to declare my questions and answers in the decision in order to enable me to establish that I have a Convention-related claim in relation to the matter.
(2)I strongly believe that my case should be seriously considered by the relevant authorities and such did not happen.
(3)I ask the Honourable Court to allow me to file and serve such further information in an affidavit containing additional information and evidence including a copy of the transcript which I could not prepare on time yet. I hope that such information will definitely be lodged at least 21 days before the hearing.
As I said, the amended application was filed on 27th July 2005.
One year and four months later the Applicant has not filed any further document. Again it would appear that the amended application did not disclose any reasonable cause of action. The Court file does not show any attempt by the Minister’s lawyers to have the application summarily dismissed.
The Applicant has not filed any outline of submissions. The solicitors for the Minister have apparently found it necessary to brief Counsel to conduct this case. Mr Smith of Counsel has prepared a brief outline of submissions in which he submits, correctly, that the Tribunal had no duty to ask the Applicant any particular questions (see Abebe v Commonwealth (1999) 197 CLR 510 at 576-577 per Gummow and Hayne JJ).
The Applicant attended Court today and made submissions with the assistance of an interpreter in the Arabic language. He told the Court that he did not want to apply for a visa as a refugee. He said he did not have any enemies and he is not a refugee. When asked by the Court why he was asking for his application to be sent back to the Refugee Review Tribunal he said that the person he resorted to help him, meaning a migration agent, had ripped him off and had given him a false visa which was not worth anything. He wanted the Court to assist him and indicated that he had further evidence.
He said that the Refugee Review Tribunal knew what had happened to him but there was an error on the part of the Refugee Review Tribunal which did not act in a lawful way. He said that it is not possible for the Tribunal to consider his application as a refugee based on the fact that the account prepared by the migration agent was wrong. The Applicant said that he had not had legal advice or any advice other than from the migration agent who had treated him so badly. He confirmed that he had complained to the Migration Agents Registration Authority about this man.
The Applicant reiterated that he was not a refugee and that he had always got on well with his neighbours and wanted an opportunity to stay and work in Australia and spend money to his parents. He said that the situation in Lebanon was not good at the moment.
I asked Counsel for the Respondent Minister why no application appeared to have been made to the Court for summary dismissal of the application. His instructions were that there had been a perception within the office of his instructing solicitors that there may have been some issue relating to s.424A of the Migration Act. The concern was that not only had the Applicant given evidence, but so too had his brother and sister-in-law. Counsel for the Respondent conceded that in his view there was no s.424A problem as the information that was the reason for the Tribunal to dismiss the application, or more correctly, to affirm the delegate’s decision, was the information that came from the Applicant himself to the extent that, first, he said that the claim prepared by the migration agent was fabricated, and secondly, the Tribunal had asked the Applicant questions in order to satisfy itself that there was no Convention-related claim. In my view, Counsel’s appreciation that there was no s.424A problem was correct.
This is an application entirely without merit. The Applicant applied for a protection visa with the aid of a migration agent claiming a fear of persecution on the ground of religion. The Applicant and his two witnesses attended the Tribunal hearing and told the Tribunal Member that the story was a sham cooked up by an unscrupulous migration agent. Nevertheless, the Tribunal asked questions of the Applicant in order to satisfy itself that the Applicant did not have any
Convention-related grounds and was satisfied that he did not. Notwithstanding this, the Applicant commenced proceedings for review of the Tribunal’s decision with an application that did not disclose any case at all.
The amended application makes the claim that the Tribunal erred by not making enough inquiries to see whether the Applicant might just possibly have a refugee claim. Apart from the fact that the Tribunal has no obligation to conduct any inquiries in those circumstances, it is obvious that:
a)the Tribunal did in fact ask questions of the Applicant in order to ascertain whether there might be a refugee claim and
b)the Applicant has at no time ever asserted that he had any claim under the Convention except for the claim based on his religion that he specifically disavowed at the Tribunal hearing as a fabrication by his migration agent.
There is no jurisdictional error, nor anything remotely resembling jurisdictional error.
The decision is a privative clause decision and is not subject to certiorari or mandamus. The application will be dismissed with costs. It appears to me that this proceeding is an abuse of the process of the Court. The original application filed on 23rd May 2005 makes these claims in its grounds:
(1)I ask the Court to allow me to stay in Australia as I am needed by my brother to assist him as a qualified hairdresser.
(2) My brother lodged an application for sponsorship and I have requested copy of my file and documents from the department in order to prepare a plea to the Honourable Minister.
I am satisfied that this application has been brought for a collateral purpose. At no time has the Applicant ever filed any document in this Court showing that he might possibly have a refugee claim. All he has done is criticised the Tribunal for not looking hard enough in order to find one. The Applicant has brought this application and persisted with it in order to stay in Australia.
What is disappointing is that the solicitors for the Minister appear to have meekly acquiesced in allowing this spurious claim to remain in the court list for 18 months from 23rd May 2005 without apparently taking any interlocutory steps to bring it to an end. The Federal Magistrates Court has more than enough work to do in the migration jurisdiction. I see from the Federal Magistrates Court Australia Annual Report 2005-2006 that during the financial year, a total of 2006 applications under the Migration Act were filed in the Sydney Registry of the Court and 2454 were finalised. The Court does not need to have applications without the slightest shred of merit such as this one remaining in the list for 18 months and taking up valuable hearing time that could have been used for a more deserving case.
I will dismiss the application with costs against the Applicant.
I find it difficult to see, however, with respect, why it was considered necessary to brief Counsel in this matter, especially Counsel as senior and experienced in this jurisdiction as Mr Smith. In my opinion, any capable solicitor with a modicum of litigation experience would have been able to meet an application so devoid of merit as this one.
There is an application for costs on behalf of the Respondent Minister in the sum of $4,500.00. I am mindful of the fact that costs are discretionary and the concern that I have in this case is that this matter has been allowed to remain in the court list for a period of 18 months when with a degree of care or supervision responsible solicitors would have seen to it that the matter was disposed of at a much earlier date.
I make no criticism of Counsel for the Respondent as by the time I am sure he received the brief the damage had been done. He has done no more than point out to the Court the shortcomings, to put it mildly, of the Applicant’s case and has not sought to prolong the hearing time by unnecessary submissions.
I find it disappointing that the taxpayers should have to pay a substantial amount of money for an application which appears to me to have been without merit on the Applicant’s part and mishandled by the solicitors for the Respondent Minister. If there are any other applications that the Minister’s solicitors have which are as singularly devoid of merit as this one, my recommendation would be that they take action to bring them before this Court at the earliest possible opportunity.
Whilst I have entertained the idea of not making an order for costs at all, I am also mindful of the fact that it was the Applicant who brought this spurious and time-wasting application. He has told the Court that he is desperate for money. It is regrettable that he did not seek some sensible advice a long while ago rather than keeping this matter in the list and wasting the Court’s time. I do propose to make an order for costs. The Respondents seek costs in the sum of $4,500.00. I propose to make an order in the sum of $2,250.00.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 30 November 2006
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