SZGPB v Minister for Immigration

Case •

[2005] FMCA 1619

•

28 October 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGPB v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1619
MIGRATION – RRT decision – Indian fearing political persecution – did not attend Tribunal hearing – adjournment request refused – no denial of procedural fairness – no jurisdictional error found – previous judicial review proceedings dismissed for non‑attendance – discretion to dismiss new proceeding – direction against further filings.

Federal Court Rules, O.32 r.2(1)(c)
Federal Magistrates Court Rules 2001, r.13.10(c)
High Court Rules 2004, r.41.10.5
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425A(3), 426A, 474(1), 477(1A), 483A

NASE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 263
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769

Applicant: SZGPB
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1652 of 2005
Judgment of: Smith FM
Hearing date: 28 October 2005
Delivered at: Sydney
Delivered on: 28 October 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person
Counsel for the First Respondent: Mr J Kettle
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application is dismissed. 

  2. The applicant must pay the first respondent’s costs in the sum of $4,600. 

  3. Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 23 May 2003 reference N02/43134 or for review of the decision of the delegate of the first respondent dated 27 May 2002 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1652 of 2005

SZGPB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

  1. The principal application in this matter is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 23 May 2003.  The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant. 

  2. The application was given a first court date on 7 July 2005 and the applicant appeared before a Registrar on that occasion, when he was also served with a notice of motion brought by the respondent Minister seeking the summary dismissal of the application under r.13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of the process of Court.  The applicant was also served with an affidavit and an outline of submissions in support of that interlocutory application. 

  3. The Minister’s interlocutory application was based on a history of litigation to which I shall refer below.  That history has involved the applicant in proceedings before two Federal Court Judges and the High Court of Australia, and has resulted in the dismissal of all his previous Court applications.  As I shall explain below, due to the absence of the applicant, no final judgment on his entitlement to relief by way of judicial review has been given, or at least that is arguable.  

  4. In those circumstances, when the present application came before me for directions on 8 August 2005, I decided that it was appropriate to set the principal application down for a final hearing today, and I also made the interlocutory application returnable for hearing today.  The applicant attended at the directions hearing and was aware of the nature of today’s hearing.  Having further examined the papers before today’s hearing, it appeared to me most appropriate to proceed with a final hearing on the merits of the principal application, and I have conducted the hearing today on that basis.  

  5. The material before me, which consists of a full Court Book prepared for the previous proceedings, shows that the applicant arrived in Australia in November 2001.  An application for a protection visa was lodged on his behalf by a migration agent on 8 January 2002.  In his application the applicant said that he was an Indian national, and explained his departure from that country as follows: 

    Since last 7 years I was active member of Bhartiya Janata Party (BJP).  In last Councillor Election I was in charge of election campaign for my area candidates.  During that campaign I was attacked, by opposition party workers (Congress Party), several times. 

    In my leadership my party candidate won the councillor election, but since then opposition party workers were after my life and I was attacked three times in last 6 months and twice I was hospitalised for several days.  My life was in danger and I had no choice but to leave country. 

  6. No further details or supporting documents were given to the delegate before he refused the application on 27 May 2002, nor subsequently to the Tribunal in the course of an application for review lodged on 24 June 2002.  The applicant was represented and assisted in his appeal by a migration agent. 

  7. In its statement of reasons the Tribunal recounted the procedural history of the matter:  

    15.        On 6 November 2002 the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 12 December 2002.  On 12 November 2002 the Tribunal received a response to hearing invitation, dated 13 October 2002, indicating that the applicant would be attending the hearing and that he did not require an interpreter.  On 11 December 2002 the applicant’s migration agent tendered a request for postponement of the hearing and a medical certificate.  The medical certificate indicated that the applicant was suffering acute lower back pain.  The postponement was granted and the hearing rescheduled. 

    16.        On 6 January 2003 the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 10 February 2003.  On 24 January 2004 the Tribunal wrote to the applicant advising that due to circumstances beyond its control, the hearing was cancelled.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 18 March 2003.  On 7 March 2003 the Tribunal again wrote to the applicant advising that due to circumstances beyond its control, the hearing was cancelled, and invited the applicant to give oral evidence and present arguments at a hearing on 14 April 2003.  On 31 March 2003 the Tribunal further wrote to the applicant advising that due to circumstances beyond its control, the hearing was cancelled, and invited the applicant to give oral evidence and present arguments at a hearing on 29 April 2003. 

    17.        On 17 April 2003 the Tribunal received a response to hearing invitation, dated 13 October 2002, indicating that the applicant would be attending the hearing and that he did require an interpreter in the Hindi language.  On 28 April 2003, at about 4 pm, the applicant’s new migration agent tendered by facsimile a Form 956 authorisation of person to act and receive communication, and requested a postponement of the hearing as the applicant had appointed him as his new migration agent that day and he needed to study the whole case and interview the applicant.  The Tribunal attempted to contact the applicant and the new migration agent to inform them that the postponement was refused.  The applicant had not provided the Tribunal with a telephone, facsimile or email contact.  The Tribunal finally contacted the migration agent by telephone on 29 April 2003, at about 9:30 am, and he was informed that the postponement was refused and that the applicant should attend the hearing.  He was also informed that time for additional submissions would be discussed with the applicant and migration agent at the hearing.  The migration agent informed that he would contact the applicant, inform of the refusal of the postponement and that the applicant should attend the hearing. 

    18.        The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

  8. On the evidence before me, this was an accurate account of the circumstances in which the applicant was refused the adjournment application in relation to the Tribunal’s hearing on 29 April 2003. 

  9. In its reasons for affirming the delegate’s decision, the Tribunal referred to country information both in relation to the Indian political situation and the ability of people to relocate within India.  The Tribunal, in its “Findings and Reasons”, said:  

    33.        Notwithstanding that the applicant has claimed that he was the subject of persecution because of his political activities in India, he did not provide any specific details of his claims at all, merely making general assertions about what he did and what might happen to him if he returns to India.  Consequently, his claims were vague and generalised, and appeared to be generic, and I am unable to establish the relevant facts of the matter.  I would have questioned the applicant about the specific details of his claims at a hearing if he had attended.  Accordingly, I am unable to accept that the applicant’s claims have any credibility or veracity. 

    34.        The applicant’s claims of his political activity were almost completely lacking in detail.  His claims were general in nature avoiding any of the where, how, why and when.  He did not produce any supporting evidence of his membership of the political party he claimed to have belonged to, nor of his specific responsibilities within that organisation, despite claiming to have been an active member and important member of the BJP in his local area.  He did not provide any detail at all of any of his activities in supporting candidates in local elections, when the elections might have occurred or of the violence and attacks he claimed to have suffered or feared at the hands of opposition Congress Party workers. 

    35.        In light of this evidence, I am not satisfied that the applicant was the subject of persecution for his political activities in India or that there is a real chance of being the subject of persecution if he returns to India. 

    36.        I am supported in this respect by the applicant’s travel activities.  The applicant was able to obtain a passport in March 1997 and a temporary business visa to travel to Australia in November 2001.  He was able to leave India without difficulties and incident in November 2001.  Having arrived in Australia on 24 November 2002, the applicant did not make a protection visa application until 8 January 2002, some 7 weeks after arriving in Australia.  These are not the travel details of a person who claimed that he was of adverse interest to political opponents and the authorities, and who claimed to fear persecution in India. 

    37.        Accordingly, I am not satisfied that the applicant has a well founded fear of persecution by reason of his political opinion or for any other Convention reason in India.  Further, I am not satisfied that the applicant has a well founded fear of persecution in the foreseeable future if he was to return to India by reason of his political opinion or for any other Convention reason. 

  10. As I have indicated, the Tribunal’s decision was handed down on 23 May 2003. On 19 June 2003, the applicant filed in the Federal Court an application for review under s.39B of the Judiciary Act 1903 (Cth). The two grounds of appeal appearing in an affidavit made general allegations that:

    (a)The decision made by the RRT was an improper exercise of the powers conferred by the Migration Act 1958 and Migration Regulations 1994 as amended.

    (b)The decision involved an error of law being an incorrect interpretation of the applicable laws and incorrect application of the law to the facts.  

    No particulars were given of these contentions.  

  11. It appears that the matter was listed for a hearing before Stone J on 8 December 2003.  On 7 December 2003, the Court received by facsimile a request by the applicant for an adjournment “due to my illness” and supported by a certificate certifying: “He/she is unfit for any duties from 7/12/03 to 8/12/03”. 

  12. There is in evidence before me an order made by Stone J on 8 December 2003 that: “The application be dismissed pursuant to Order 32 Rule 2(1)(c) of the Federal Court Rules”.  That rule provides for the dismissal of an application due to the absence of an applicant when proceedings are called on for trial.  I infer that Stone J refused the adjournment application and was satisfied that it was appropriate to exercise her power of dismissal.  I am informed by the Minister’s solicitors that her Honour’s reasons have not been published as a written judgment.  

  13. On 15 October 2004, some 10 months after her Honour’s order, the applicant filed an application for extension of time to appeal from her Honour’s order.  The application was listed before Emmett J on 11 November 2004.  On 10 November 2004, the Court received a facsimile request from the applicant saying: 

    Unfortunately from this afternoon I did not feel good.  I am not physically not fit for appear before your Honour abovementioned hearing date tomorrow (Medical Certificate attached). 

    A medical certificate states that the applicant was suffering from severe viral URTI, i.e. upper respiratory tract infection, and “will be unfit for work/school/Court attendance from 10/11/04 to 12/11/04 inclusive”. 

  14. There is in evidence before me an order made by Emmett J on 11 November 2004 which dismissed the application for extension of time.  I am informed by the Minister’s solicitor that his Honour’s reasons were not published as a written judgment.  However, plainly his Honour was unimpressed by the adjournment application and proceeded in the same manner as Stone J. 

  15. On 4 February 2005, the applicant applied for special leave to appeal from the orders of the Federal Court to the High Court of Australia. The application was determined under r.41.10.5 of the High Court Rules 2004, and was refused. When publishing the reasons of the Court in NASE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 263, McHugh J said:

    The applicant submits that the Tribunal’s decision was attended by jurisdictional error and that he was denied procedural fairness.  He claims that the Tribunal did not take all relevant information into account and that the decision was affected by actual bias.  The applicant has not included in the papers the reasons for the orders made by Stone J and Emmett J, and did not particularise these allegations.  Upon examining the Tribunal’s reasons, nothing amounting to denial of procedural fairness or actual bias is apparent.  The applicant does not specifically claim that he was denied procedural fairness due to the refusal to postpone the determination hearing.  In any event, such a claim could not succeed in light of the history of correspondence between the Tribunal and the applicant in relation to fixing a hearing date, and the fact that the Tribunal contacted the applicant’s agent, who informed the Tribunal that he would inform the applicant of the refusal and that the applicant should attend the hearing. 

    The application is out of time.  There is nothing in the draft notice of appeal or summary of argument to suggest that either the Tribunal or the Federal Court erred in their findings.  An appeal in this matter would have no prospect of success.  Accordingly, the application must be dismissed.  

  16. On 27 June 2005, two months after the dismissal of his High Court application, the applicant commenced the present proceeding in this Court.  His application for review contains 12 grounds which are an adaptation from a precedent familiar to the Court.  I do not consider that I need to go through each of them separately.  Some of them are plainly lacking in any bearing at all on this Tribunal’s decision.  Others are in such generality that they cannot meaningfully be addressed in the absence of proper particulars.  The remaining grounds are assertions of refugee status, which do not provide grounds for jurisdictional error.  

  17. The applicant filed a document headed “Applicant’s Argument Against the Notice of Motion” on 3 August 2005.  This is a six‑page document which also contains paragraphs familiar to the Court, and is completely lacking in relevance to the particular Tribunal decision.  Thus, for example, it suggests that the applicant had claimed persecution as a member of a particular social group, and that the Tribunal had not considered “a detailed submission and necessary supporting documents” which he had provided.  Neither of these things happened.  It also contains the tantalising proposition: 

    The Tribunal failed to internalise the circumstantial grounds of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and as such has breached the Migration Act 1958.

    I am unable to find in this document a contention meaningfully addressing the present decision of the Tribunal. 

  18. On 14 October 2005, the applicant sent to the Court an “Outline of Submissions” which does contain two contentions specifically directed at the proceedings and reasons of this Tribunal.  The first contention is: 

    3.The invitation to a hearing letter sent by the Tribunal to the applicant on 31st March 2003 rescheduling the hearing to 29th April 2003 for reasons beyond the Tribunal’s control did not comply with the statutory requirements as it failed to give the prescribed notification period to the applicant.  The hearing should have been rescheduled to 23rd April 2005 in accordance with s.441C(4) and Reg.4.35D.  The Tribunal’s invitation to a hearing was defective and accordingly it failed to meet the statutory requirements under s.425 to give the applicant an opportunity at an oral hearing. 

    Notwithstanding the fact that the applicant responded to the invitation to a hearing letter, by failing to give the prescribed notification period under s.425A(3), the Tribunal breached a mandatory requirement found in Part 4 of the Migration Act 1958 and the Migration Regulations 1994 and following the High Court’s decision in SAAP v MIMIA, it therefore fell in a jurisdictional error. 

  19. As the solicitor for the Minister points out in his written submission, the effect of this argument is that “the applicant alleges that the hearing invitation was defective as the applicant was provided with more than the prescribed period of notice” (his emphasis). 

  20. The argument is without substance because s.425A(3) of the Migration Act provides “the period of notice given must be at least the prescribed period … ” (emphasis added). 

  21. The second contention made in the outline of submissions is: 

    4.The Tribunal had before it certain adverse information which formed a reason or part of the reasons because of which the Tribunal affirmed the delegate’s decision.  The Tribunal stated in its decision [at paragraph 36] that it was supported in its finding that the applicant did not face persecution for political activities in India by the applicant’s travel activities.  The information the Tribunal relied upon was that: 

    (i)The applicant was able to obtain a passport in March 1997 and a temporary business visa to travel to Australia in November 2001.  [paragraph 36] 

    (ii)He was able to leave India without difficulties and incident in November 2001.  [paragraph 36] 

    (iii)Having arrived in Australia on 24 November 2002, the applicant did not make a protection visa application until 8 January 2002, some 7 weeks after arriving in Australia.  [paragraph 36] 

    (iv)Notwithstanding the applicant’s claim never to have travelled outside his country previously, the Department’s movement database indicates that the applicant travelled to Australia in March 1998.  [paragraph 21].  This particular information was not referred to in the “findings” section of the Tribunal’s decision but was included in the “evidence” section.  As the Tribunal did not expressly disregard this information , in all probability it was relied upon to reach the Tribunal’s conclusion. 

    None of the above information was put to the applicant for comments in writing as required by s.441A.  The information listed above was specifically about the applicant and was not given by the applicant for the purposes of the (review) application [Al Shamri v MIMA].  Section 424A of the Act therefore applied to this information and the Tribunal was obliged to put this information to the applicant in writing.  Notwithstanding that no oral hearing was held where the Tribunal could put this information for the applicant’s comments, following the High Court’s decision in SAAP, this information was required to be put to the applicant for his comments in writing.  Failure to do so amounted to jurisdictional error. 

  1. This argues a failure to serve notice under s.424A in relation to the Tribunal’s reasoning in [36] which I have set out above. In my opinion, it should be rejected. The essential reasoning of the Tribunal is found in [33] to [35] set out above, which was that due to the lack of detail in the applicant’s claims, and the Tribunal’s inability to establish relevant facts due to the absence of the applicant from the hearing, it was not satisfied as to the matters arising under the Convention definition.

  2. I therefore accept the submission of the solicitor for the Minister that the situation should be characterised in the same manner as was the argument dealt with by a Sackville J in SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769 at [59]. The Tribunal’s reference to the applicant’s passport was not integral to its reasoning process.

  3. The applicant has appeared today.  When invited to address the documents he has filed, and to explain possible grounds for review, he raised with me his concern that he had not presented his problems in India at a hearing of the Tribunal, and said that he wanted the opportunity to do so.  I took this to invite me to address the circumstances under which the Tribunal refused the adjournment request made by his agent. 

  4. However, in my opinion it was open to the Tribunal to refuse that request under the statutory provisions governing the hearing procedures of the Tribunal, insofar as they reflect or are assisted by concepts of procedural fairness.  I also respectfully adopt the opinion of McHugh J and Heydon J in their reasons which I have extracted above, which dealt with that issue.  It is clear that their Honours had before them the same documents which I have considered concerning the refusal of the adjournment request.  In my opinion, no denial of procedural fairness occurred.  

  5. The applicant’s further statements to me concerning his non‑attendance before the Tribunal did not advance his case, since he told me that his agent had advised him that the Tribunal would not decide in his favour, and that this was a reason for him deciding not to go to its hearing.  

  6. The other statements that the applicant made to me were a plea for the Court to allow him continued residence in Australia for a further six months or a year, after which he said he would return to India.  However, as I have explained to him, it is not the function of the Court to grant people permission to stay in Australia, and the use of Court processes to obtain continued residence by bringing unmeritorious applications would be an abuse of process.  

  7. I have not found in the arguments presented by the applicant, nor upon my own reading of the material, jurisdictional error affecting the Tribunal decision. I therefore find that it is a privative clause decision for which relief by way of judicial review is barred under s.474(1). It also follows that the present application was commenced beyond the time limit set in relation to judicial review of privative clause decisions by s.477(1A). I must therefore dismiss the application.

  8. Before doing so, I should record my opinion that even had I found jurisdictional error, I would have declined to grant relief under the Court’s discretion.  This was recently described by McHugh J in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24:

    [80]The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome. (citations omitted)

  9. In the present case, the applicant’s delay in bringing the present application is unwarranted.  His history in previous litigation which I have described above provides further reasons for refusing to grant relief, rather than properly explaining his delay.  It is unnecessary for me to decide whether his conduct would also allow his application to be characterised as an abuse of process of the Court. 

  10. My above approach to this proceeding has meant that I have not been required to address the Minister’s application for summary dismissal, although in my opinion it was properly brought.  However, the Minister also requested that the Court should give a direction to the Registry not to accept further applications by way of judicial review in relation to decision‑making on the applicant’s protection visa application, except with the leave of the Court.  The appropriateness of such directions has been addressed in previous judgments of mine, which have also pointed for the need for it to be drawn broadly.  

  11. I would not normally give such a direction after a final hearing in these matters, but in the circumstances of this case, where the applicant has the history of previous litigation which I have already indicated, has used precedents of the type which I have described, and has frankly indicated to me that the purpose of his litigation is to protract his period of lawful residence in Australia, I consider such a direction to be appropriate.  I shall therefore include one in my order. 

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty‑two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  11 November 2005

Actions
Download as PDF Download as Word Document