SZGQJ v Minister for Immigration
[2005] FMCA 1785
•12 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGQJ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1785 |
| MIGRATION – Summary dismissal application – applicant failed to appear before FMC and FCA so proceedings dismissed – no satisfactory explanation by applicant for non appearance before FMC or FCA – new proceeding in FMC an abuse of process. |
| Migration Act 1958 (Cth), s.477 |
| B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 |
| Applicant: | SZGQJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1725 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 October 2005 |
| Date of Last Submission: | 12 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2005 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr P. Reynolds, Clayton Utz |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the Application filed 1 July 2005 is dismissed.
That the Applicant to pay the Respondent's costs in the amount of $2600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1725 of 2005
| SZGQJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The First Respondent filed an application on 16 August 2005 seeking an order that the application filed in this Court on 1 July 2005 (“the Application”) be dismissed as the proceeding is frivolous, vexatious, and/or an abuse of process.
The First Respondent also filed a notice of objection to competency on 28 September 2005 on the basis that as the Application was filed some 360 days after the date of the decision of the Tribunal and, therefore, outside the 28 day time period required for the filing of an application for judicial review, pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”).
The First Respondent relied on the affidavit of Olivia Ol-Lam Mak, sworn 27 July 2005 and filed 16 August 2005. That affidavit annexed a copy of the decision of the Tribunal, and a copy of orders sought by the Applicant in an application filed in the Federal Magistrates Court in Melbourne on 22 June 2004. However, the application annexed to the affidavit does not disclose the grounds upon which review was sought.
The Applicant confirmed before this Court this morning that the grounds relied upon by him in Melbourne are the same as the grounds relied upon by him in his Application filed on 1 July 2005. Those grounds are as follows:
“The tribunal made his decision in bad faith. The tribunal deprived me of the natural justice. The tribunal denied the evidentiary proof of my claim. The tribunal’s decision did not reflect the material facts of my claim. The tribunal has given a decision, which was preset in the back of it’s mind. The tribunal mixed up many facts with this decision which affected the decision. The tribunal concentrated in particular fact, while ignored many other facts in this condition. The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim. My application is late.
I refer to high court case 157/2002 v MIMIA. I will provide more details of grounds later.”
The grounds, on the face of the Application, contain no particulars, and disclose no reviewable error. At the heart of the Applicant's complaint is his disagreement with the conclusion of the Tribunal in affirming a decision of the delegate to refuse to grant him a protection visa.
Before the Tribunal, the Applicant claimed that he feared persecution for political reasons by supporters of an opposing faction within the Dravida Munnettra Kazhagam (“DMK”) in Tamil Nadu.
The Applicant has a wife and two children who continue to reside in India.
The Applicant gave oral evidence before the Tribunal. The Tribunal found him to be a credible witness in respect of his fears of being persecuted by supporters of Asagari if he returned to Madurai, and that he was an active member in the DMK.
The Tribunal accepted the evidence from the Applicant that he received a threatening telephone call following the killing of the leader of his faction, and that the Applicant lodged a complaint with the police about the telephone call, but was afraid to tell the police who he believed was responsible. The Tribunal noted in its findings and reasons that the Madurai police had responded appropriately to the killing, by arresting Asagari. The Tribunal noted that the Applicant agreed that the police would have taken his complaint to them seriously, if he had provided them with the additional information he knew about the incident. In those circumstances, the Tribunal was not prepared to accept that adequate or effective State protection was not available to the Applicant in respect of the political persecution he feared. Those findings of fact would appear to be open to the Tribunal on the evidence before it.
In those circumstances, the Tribunal did not accept that there is a real chance that the Applicant would be persecuted for political reasons by Asagari or his supporters, if he was to return to Madurai.
On 28 May 2004, the Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse a protection visa to the Applicant on the basis that the Applicant was not a person to whom Australia owed protection obligations.
On 22 June 2004, the Applicant filed an application in the Federal Magistrates Court of Australia in its Melbourne Registry seeking judicial review of the Tribunal’s decision. On 27 January 2005, McInnis FM dismissed the Applicant’s application filed on 22 June 2004 on the basis of the non‑appearance of the Applicant at the hearing.
The Applicant then appealed to the Federal Court of Australia and, once again, failed to appear at that hearing. The appeal was therefore dismissed.
On 1 July 2005, the Applicant filed a new application in the Federal Magistrates Court of Australia in its Sydney Registry seeking judicial review of the Tribunal’s decision.
The Applicant has not filed any evidence as to any excuse or reason for his failure to appear before the Federal Magistrates Court of Australia on 27 January 2005 and before the Federal Court of Australia on
27 April 2005. He has submitted that the reason he failed to appear was because his advisor advised him not to. However, it is not a denial of procedural fairness where a party fails to appear, or take any particular step, through bad advice (B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [25]). Accordingly, I do not accept that explanation as a satisfactory reason for failing to appear on two prior occasions before two different courts. No other reason or explanation was proffered by the Applicant for his non appearances.
In considering whether or not the orders sought by the First Respondent should be made, I have regard to the failure of the Applicant to appear in Court on two prior occasions without a satisfactory explanation.
The Applicant has confirmed that the grounds he relies on before this Court are the same as those relied upon in the earlier proceeding before McInnis FM. The Applicant has had two opportunities to prosecute his claims for relief. Further, I have had regard to the Tribunal’s decision, as referred to above at paras 6 to 11 of these reasons, in considering whether the Applicant’s case is sufficiently arguable that the interests of justice would demand that the Applicant have a further opportunity to prosecute his claims for relief. It is not apparent to me that the Applicant’s case is sufficiently strong that the interests of justice would not be served unless the Applicant was afforded a further opportunity to press his Application filed on 1 July 2005.
In light of the fact that:
a)there is no reviewable error disclosed by the Application in its present form, as referred to above at para 5; and
b)the Applicant confirmed that his Application before this Court relies to the same grounds as those in the application dismissed by McInnis FM on 27 January 2005; and
c)error is not clearly apparent on the face of the Tribunal’s decision; and
d)the Applicant has failed to appear at two prior hearings without a satisfactory explanation,
I am satisfied that to allow the proceeding before this Court to continue is frivolous and an abuse of process. For those reasons, the Application filed by the Applicant on 1 July 2005 is dismissed with costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 28 November 2005
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