SZGRJ v Minister for Immigration
[2006] FMCA 293
•3 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 293 |
| MIGRATION – Review of the Refugee Review Tribunal decision – interlocutory application for dismissal – issue of delay – interlocutory application upheld. |
| Federal Magistrates Act 1999 (Cth) Federal Magistrates Court Rules (2001) Cth Judiciary Act 1903 (Cth), s.39B |
| Applicant: | SZGRJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1777 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 February 2006 |
| Date of last submission: | 20 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2006 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the aid of a Mandarin interpreter |
| Advocate for the Respondent: | Ms Z Brauer |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The respondent’s interlocutory application is upheld.
The applicant’s application for judicial review filed on 5 July 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1777 of 2005
| SZGRJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By an interlocutory application filed on 18 January 2006, the respondent moves the Court for orders that the proceedings be dismissed pursuant to the jurisdiction conferred by s.14 and/or 15 of the Federal Magistrates Act 1999 (Cth) on the basis that:
a)an order that the proceedings be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules (2001) Cth (“the Rules”) on the basis that no reasonable cause of action is disclosed in relation to the proceedings or claim for relief; and
b)further or in the alternative, an order that the application is incompetent.
A Notice of Objection to Competency was filed by the respondent on 12 August 2005 objecting to the jurisdiction of this Court to try this application under the Migration Act 1958 (“the Act”) on the grounds that:
a)On 21 September 1998 the Refugee Review Tribunal made a decision relating to the applicant (“the Judge’s decision”).
b)By letter dated 21 September 1998, the applicant was notified of the decision.
c)On 5 July 2005, the applicant applied to the Federal Magistrates Court for a review of the decision.
d)Pursuant to s.447(1A) of the Act, an application to the Court for review of a privative clause decision must be made within twenty-eight (28) days of the notification of the decision.
e)The applicant has failed to make an application within the required twenty-eight (28) days of being notified of the decision.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Act, filed in the Sydney Registry of the Federal Magistrates Court on 5 July 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 21 September 1998 affirming the decision of the delegate of the first respondent (“the delegate”) made on 22 August 1997 to refuse to grant the applicant 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 provisions of s.91X of the Act and has been given the pseudonym “SZGRJ”.
For the purposes of this interlocutory application, the respondent tendered and applied for the affidavit of Zoe Elizabeth Brauer sworn on 17 January 2006 (“the affidavit of Ms Brauer”) to be admitted into evidence. A Court Book prepared by the respondent’s solicitors, was filed and served on 4 August 2005.
Background
The applicant, who is a citizen of the Peoples’ Republic of China, arrived in Australia on 17 May 1997. On 13 June 1997 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). On 22 August 1997, a delegate of the Minister refused to grant a protection visa and on 26 September 1998 the applicant sought review by the Tribunal of the delegate’s decision (CB 64).
The applicant indicated in her application for a protection visa, that prior to her departure from China she lived in the city of Tianjin. She stated that she had 10 years of education and that she subsequently worked as a designer for the “Tianjin Disabled Recover Centre”. The applicant states that she was married with one child and that her husband and child were living in China at the time the application was lodged. In support of her claim to refugee status, the applicant stated that she was opposed to corruption in her work unit in China. She stated that her employer provided free wheel chairs to the Deng Xiao Ping’s son, Deng Pu Fang. The applicant stated that in 1995 she was assigned to a research project which was intended to improve Deng Pu Fang’s wheel chair. She stated she thought it was unfair that public money was being spent for just one powerful and privileged individual. The applicant indicated that she demonstrated her disapproval of the research project by leaving the group.
The applicant stated that in September 1996, at the time when her employer was delivering a new and updated wheel chair to Deng Pu Fang’s representative, she and another technician organised 50 people to protest against corruption. The applicant stated that as a consequence of her action the work unit suspended her salary for two months. The applicant stated that she appealed against the work unit’s decision and her action caused “great attention from the senior leaders”. She stated that those senior leaders wanted to use her case for their own purposes during internal political power struggles. The applicant stated she decided to flee the country as she considered herself to be in great danger because of her implications in political power struggles at a high level of government (CB 67).
The tribunal’s findings and reasons
In its decision, the Tribunal made the following findings:
a)The Peoples’ Republic of China government was not targeting those who were previously involved in any government activities but those citizens who persist in expressing their opposition to the government.
b)In relation to corruption in China, the Tribunal did not find that the applicant’s difficulties in this regard were convention related.
c)In relation to the brought claim that the applicant suffered persecution by reason of her political opinion and imputed political opinion, the Tribunal found that the applicant had never been implicated in political activities against the government other than to protest against the corruption and that therefore there was no real chance that she suffered persecution by the PRC government now or in the reasonable foreseeable future.
Application for review of the tribunal’s decision
On 5 July 2005, the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
a)The decision by the RRT involves a jurisdictional error of law being error of law involving an incorrect interpretation of the applicable law to the fact of the cases were found in the decision.
b)[to redirect the applicant’s claim to the RRT for further consideration].
Particulars
c)The Tribunal failed to take relevant consideration into account to exercise its power to determine to the applicant as a refugee;
d)The Tribunal made a number of errors to decide the case;
e)The Tribunal member refused to accept that the applicant had a well-founded fear of persecution on convention reasons;
f)The Tribunal member did not consider the application properly.
[Errors Included]
Respondent’s application
Ms Z Brauer, solicitor appearing for the respondents, filed written submissions prior to the hearing which contained the following contentions:
19.No explanation whatsoever has been given by the Applicant to account for the 7 year (approximate) delay in filing proceedings in this Court.
20.It is clear that the relief sought by the Applicant in this Court is discretionary: Re Refugee Tribunal: Ex Parte Aala (2000) 2004 CLR 82. More recently in SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALJR 1009 (SAAP), the High Court confirmed the discretionary nature of relief for jurisdictional error. McHugh J stated that relief may be refused if "the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example if there is delay…or the Applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands": at [79] to [84]
21.In Aala Gaudron and Gummow JJ observed that the question of whether relief should be granted should have regard to "the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances": at [53]. Their Honours refer to the High Court in R v Commonwealth Court of Conciliation and Arbitration ex parte Ozone Theatres (1949) 78 CLR 309 at 400. In Ozone Theatres the High Court gave as examples where mandamus may not be granted those ‘where a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the Applicant’.
22.In the present case, a delay of approximately 7 years is unwarrantable. The Applicant has made no effort to account for the reason why she waited such an inordinate amount of time to prosecute her case. Such conduct is, in the words of McHugh J, inconsistent with the application for relief.
24.The Respondent submits that there is no reasonable basis to the application.
29.Accordingly it is submitted that, through the application of FMC Rule 1.05(2), Order 54B Rule 5 of the FC Rules applies such that Rule 13.10(a) of the FMC Rules reads "no reasonable basis for the application is disclosed".
30.The Court will exercise its discretion to summarily dismiss an application for judicial review on the grounds that no reasonable basis for the application is disclosed if:
(a)the Applicant's case is "so clearly untenable that it cannot possibly succeed";
(b)were the case to go to trial in the ordinary way, it is "apparent that [the application] must fail";
(c)one can say without doubt, on the whole of the material, that there is "no real question to be tried";
(d)the claim is "lacking in substance"; or
(e)there is "no factual substratum to support the claim made".
The Respondent submits that the matters raised in the Application disclose no reasonable basis for the above reasons.
31.It is noted that if the Court is minded to treat a 'bare' assertion of a legal error as disclosing a reasonable basis for the application, the Respondent submits that despite using terminology of legal error, the grounds raised are hopeless.
32.It is noted that where an Applicant is unrepresented, in considering whether or not to exercise its discretion to grant summary dismissal on the ground that no reasonable basis for the application is disclosed, the Court will not limit itself to the arguments put forward by the Applicant but must independently consider whether an arguable case based on the material could be made out. The Respondent submits that no arguable case is apparent from the material. The RRT invited the Applicant to a hearing before it by way of invitation sent to the address provided by the Applicant - a hearing which the Applicant did not attend. Unsurprisingly, the RRT was not satisfied as to the Applicant's claims and it was accordingly obliged to refuse the application. As stated by the Full Court in 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).
Reasons
The applicant in these proceedings is a self-represented litigant and appears with the assistance of a Mandarin interpreter. The applicant first appeared in this Court before me on 22 November 2005 and was provided with a time table for future proceedings in this matter, including the requirement of filing an amended application and any additional evidence to be relied upon in the form of an affidavit. These orders were not complied with and I will return to that issue. When the applicant appeared at the first court date hearing, she was offered the opportunity to participate in the Court’s “RRT Legal Advice Scheme” to provide her with advice and assistance in the preparation of the matter for hearing. The applicant was in detention in the Villawood Detention Centre and the panel advisor held a conference at the Centre to provide her with advice.
When the applicant appeared at the hearing, I raised with her the issue of filing an amended application. She indicated to the Court that she thought the panel advisor had provided her with that material and that she had subsequently supplied that material to another voluntary worker from the Red Cross organisation. The applicant was in the belief that those documents would be filed in these proceedings. There was no amended application on the Court file and no indication that such a document had been filed.
Given the inadequacies of the original application, I indicated to the applicant that I would have a member of my chambers check with the Court Registry and with the panel advisor to determine whether there was an amended application in existence and to determine its availability. Subsequent to the hearing, it emerged that the Red Cross volunteer was making a separate and independent application on the applicant’s behalf for the grant of a bridging visa, to enable the applicant to be released from detention. The panel advisor indicated that he had prepared advice for the applicant in respect to these proceedings, but that it was not an amended application and would not assist the Court in this respect.
The applicant had filed a statement prior to the hearing, which set out the applicant’s circumstances. The statement was probably intended for the bridging visa application as it bore no relevance to a judicial review. The reason for this exchange of documents and their apparent filing in the wrong proceeding remain unexplained. However, I believe that the applicant does not suffer any adversity in these proceedings due to the apparent confusion in respect of this group of documents.
The Court Book indicates that on 10 July 1998, the Tribunal wrote to the applicant advising her that it had considered all of the papers relating to the application, but he was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to attend the hearing on 17 September 1998, which she subsequently accepted and notified the Tribunal of this intention on 10 August 1998. Despite this expressed intention, the applicant did not attend the hearing nor contact the Tribunal to explain her failure to attend. This resulted in the Tribunal proceeding with its findings on the material available to it. The applicant had effectively declined the opportunity to attend the hearing and missed the opportunity to give oral evidence before it. The applicant made no attempt to explain this non-appearance, nor did she attempt to provide to this Court any explanation for the very considerable delay between the handing down of the Tribunal decision and the application for review in this Court. This amounted to a period in excess of seven (7) years. Without the intervention of the compliance officers and the resulting detention, the applicant may have precipitated the filing of the current proceedings, which probably would not have occurred without that intervention.
I accept the submissions of S Brauer set out above in paragraph 11, particularly, [19], [20], [21] and [22]. I also agree with the submission that the application discloses no reasonable basis for review and I accept the submissions made by Ms Brauer in paragraphs [24], [29], [30], [31] and [32]. I was particularly conscious that the applicant had participated in the Legal Advice Scheme. The applicant made submissions from the bar table indicating that an amended application should have been prepared, but due to some misunderstanding it had been provided to the wrong person and had gone astray. I took the precautionary steps to ensure that if this had occurred, the applicant would have at least the opportunity to submit those revised pleadings and have them considered by this Court. That misunderstanding has been resolved, at least to the extent there was no amended application prepared.
Conclusion
For the above reasons, I uphold the first respondent’s interlocutory application.
That the proceedings be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules on the basis that there is no reasonable cause of action disclosed in relation to the proceedings or claim for relief.
I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date:6 March 2006
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