SZGRY v Minister for Immigration
[2006] FMCA 450
•24 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRY v MINISTER FOR IMMIGRATION | [2006] FMCA 450 |
| MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 48A, 48B, 91X, 417, 474, 483A |
| Applicant S1083/2003 v Minister for Immigration [2004] FCA 1455 Bal v Minister for Immigration (2002) 189 ALR 566 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
| Applicant: | SZGRY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File number: | SYG1790 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 10 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2006 |
REPRESENTATION
| Applicant: | Applicant appeared in person with the assistance of an Bengali interpreter |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1790 of 2005
| SZGRY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court on 8 July 2005 for a judicial review of the decision of the delegate of the respondent (“the delegate”), made on or around 14 June 2005 informing the applicant that:
a)He was not entitled to make a further application for a protection visa unless the Minister decided that it was in the public interest for him to do so; and
b)His request (apparently implicit) for permission to lodge a fresh application did not meet the guidelines and he was therefore not permitted to apply again for a protection visa.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has in previous proceedings been given the pseudonym “SZGRY”.
The respondent’s solicitors tendered and applied for the affidavit of Kristy Lee Alexander, sworn on 7 September 2005 (“Affidavit of Ms Alexander”) to be admitted into evidence.
Litigation history
The affidavit of Ms Alexander and the written submissions of
Mr Kennett provide a convenient summary of the litigation history of the applicant, which I have adopted and reproduce as follows:
a)On 31 December 1996, the applicant in these proceedings lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”).
b)On 9 April 1997, a delegate of the respondent refused to grant the applicant a protection visa.
c)The applicant applied for review of that decision by the Tribunal on 2 May 1997. He advanced his case on the merits, lodging a detailed written statement and attending a hearing.
d)The applicant subsequently sought review of the delegate’s decision by the Tribunal and on 30 November 1998 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
e)Some time thereafter, the applicant became a represented party in the Muin and Lie class action in the High Court. Following the determination of those proceedings, he made an individual application for judicial review of the Tribunal’s decision, which was remitted to the Federal Court and dismissed by Emmett J in Applicant S1874 of 2003 v Refugee Review Tribunal [2003] FCA 1617 on 4 December 2003. There was no appearance for the applicant before Emmett J. (Affidavit of Ms Alexander paragraphs 5-6 and annexure E, p.67).
f)On 6 August 2004, an application under s.39B of the Judiciary Act 1903 (Cth) was filed by the applicant in this Court seeking review of the decision of the Tribunal dated 30 November 1998.
g)In those proceedings the applicant was represented by counsel (Affidavit of Ms Alexander, annexure E, p.65). He contended, in various ways, that the Tribunal had erred by misapplying the test of refugee status found in s.36(2) of the Act: SZEDD v Minister for Immigration [2005] FMCA 112 at [8], [20]-[24] (“SZEDD”).
h)On 1 February 2005, Smith FM dismissed the application with costs: SZEDD.
i)On 31 May 2005, the applicant lodged a further application for a protection visa with the Department, the subject matter of these proceedings.
j)On 14 June 2005, a delegate of the respondent wrote to the applicant advising him that his request for the exercise of the Minister’s power under s.48B of the Act did not meet the Minister’s “Guidelines for purported further applications for a Protection visa subject to s.48A and request for Ministerial Intervention under s.48B” and accordingly he could not apply again for a protection visa.
k)On 8 July 2005, the applicant filed an application under s.39B of the Judiciary Act in this Court seeking review of the delegate’s decision dated 14 June 2005.
Background
The Tribunal decision of 30 November 1998 contains the following background information in respect to the applicant. The Tribunal decision is relied upon only to provide background information regarding the applicant that is not readily available from alternative sources.
The applicant provided the Department with the following information in respect of his background in his original visa application. He claimed that he is a citizen of Bangladesh and arrived in Australia on 23 November 1996. The applicant was born in Munshiganj, Bangladesh in 1971. Since he completed his schooling in 1989, he was employed in various shops as a salesman. The applicant lived in Munshiganj until 1991 and then in India from 1991 to November 1996. He travelled to Australia in November 1996 on an Indian passport, which he claimed was false. The applicant stated that he fled to India in October 1991 to escape persecution and that he had returned to Bangladesh on several occasions since that time for short visits to see his family (Affidavit of Ms Alexander, p.39).
In a statement provided to the Tribunal on 9 March 1998, the applicant sets out details of his schooling and the problems that he had with Muslim students objecting to his religious beliefs. This ultimately resulted in him failing to complete his secondary education. The applicant then goes on to detail his involvement with various political parties, which again led to conflicts with political rivals, resulting in him being assaulted on a number of occasions, which ultimately led to his departure to India. He suffered similar threats in India which ultimately led to him coming to Australia and seeking protection (Affidavit of Ms Alexander, p.40).
New application for protection visa
On 31 May 2005, the applicant lodged a fresh application for a protection visa with the Department by filing new Forms 866B and 866C. On 14 June 2005, an officer from the Department wrote to the applicant informing him that he was not entitled to make a further application for a protection visa, unless the Minister decided that was in the public interest to do so. Also, the applicant’s request for permission to lodge a fresh application did not meet the guidelines and he was therefore not permitted to apply for a protection visa (Affidavit of Ms Alexander, annexures G and H).
Application for review of the delegate’s decision
The decision of the delegate dated 14 June 2005 and received by the applicant on 23 June 2005 is identified as file number, CLF2005/43725.
On 4 October 2005, an amended application was filed on behalf of the applicant by his solicitors, Parish Patience Immigration Lawyers. The amended application states:
This application is made under s.39B of the Judiciary Act 1903 (Cth) (and see sections475A and 483A of the Migration Act 1958).
The purported decision being reviewed is not a Privative Clause decision and is not affected by ss474 and 477 of the Migration Act 1958.
The application is for an order of review in respect of the decision made by a delegate of the Respondent on 14 June 2005 that the Applicant’s application for a Protection visa, lodged on 31 May 2005, was invalid (‘the purported decision’).
The Applicant is aggrieved by the purported decision because he made a valid Protection visa application.
The grounds of review of the amended application are:
1.The Respondent, through her delegate, constructively failed to exercise her jurisdiction under the Act and or acted in excess of her jurisdiction.
Particulars:
(a)The Respondent refused to determine the Applicant’s application for a Protection visa lodged on 31 May 2005 as a result of a misinterpretation of the law and or a misapplication of the law to the facts.
(i) The Applicant purported to apply for a Protection visa on 31 December 1996. The Applicant responded to Q36 of Form 866C, as follows:
Q36: Why did you leave that country
Answer: As a Hindu, I was the victim of Anti Hindu communal violence -All my family suffered and we were forced to flee Bangladesh for our safety. I will forward a detailed statement in support of my application with all my claims included and my full story explained.
(ii) The Applicant responded to Qs38-40 of Form 866C by stating:
Answer: See statement to follow.
(iii) No statement was provided by the Applicant before a decision was purportedly made by the delegate on 9 April 1997. As there had not been substantial compliance in relation to Qs36-40 of Form 866, those questions going to the issue of whether or not the Applicant was a refugee under the Refugees Convention, the application was invalid. The Minister, by her delegate, then unlawfully considered and refused the invalid Protection Visa application made on 31 December 1996 in breach of s65 of the Migration Act 1958: see also ss45-47 of the Act and Regulations 2.07(3) and 2.10.
(iv) The Applicant applied for review of that purported decision to the Refugee Review Tribunal. He provided detailed claims to the Tribunal in writing and at a hearing. The RRT affirmed the decision under review on 30 November 1998.
(v) The Applicant subsequently sought judicial review of the Tribunal’s decision. Smith FM dismissed the applicant on 16 February 2005. The issue of whether the Protection visa was validly made was not put to the learned Federal Magistrate.
(vi) As no valid Protection Visa application was made on 31 December 1996, the Minister has an obligation, in accordance with ss45-47 and 65 of the Act to consider and make a decision on the Applicant’s valid Protection visa application lodged on 31 May 2005.
Applicant’s submissions
On 9 September 2005, Parish Patience Immigration Lawyers filed a notice of appearance for the applicant. On 4 October 2005, that firm of lawyers filed an amended application on behalf of the applicant (see [10] above). On 4 November 2005, the applicant’s solicitors filed a notice of ceasing to act with a supporting affidavit. On the day prior to the scheduled hearing, a document identified as the applicant’s outline of submissions was filed. This document appears to have been prepared by a legal practitioner familiar with the jurisdiction, but that person is not identified on the face of the document. At commencement of the hearing, the applicant, who appeared as a self-represented litigant, indicated that he would rely upon the amended application and the written submission, but was unwilling to make any further oral submissions in support of his application. Consequently, I have reproduced the main elements of that submission as it is the only argument put forward by the applicant.
By enclosure to a letter dated 23 December 1996, the Applicant, by his then solicitors, Parish Patience, provided to the Department of Immigration and Ethnic Affairs (“the Department”), Forms 866 (“the Form”) together with some other material.
The questions and answers to questions within the Form were, inter alia, as follows:
15.Please list all the documents you are not providing with this application, but will be providing later (for example, certified copies of passports, birth certificates, evidence of dependency)”
A:Statement and evidence in support of my application
…
36.Why did you leave that country?
A:As a Hindu I was the victim of anti Hindu communal violence. All my family suffered and we were forced to flee Bangladesh for our safety. I will forward a detailed statement in support of my application with all my claims included and my full story explained.
37.What do you fear may happen to you if you go back to that country?
A:I will be persecuted.
38.Who do you think may harm/mistreat you if you go back?
A:See statement to follow.
39. Why do you think they will harm/mistreat you if you go back?
A:See statement to follow.
40. Do you think the authorities of that country can and will protect you if you go back? If not, why not?
A:See statement to follow.
On 9 April 1997, prior to the Applicant supplying the statement referred to in the Form, a Delegate of the Respondent considered the “application”.
Whilst noting at clause 3.2.2 of the Decision Record that the Applicant had “indicated that claims would be submitted at a later date”. The Delegate, apparently without any enquiry as to what such a statement might contain, purported proceeded to determine the “application”, and as a result refused to grant a protection visa.
In the Applicant’s submission, the legislative framework which existed at the Application Date was as described by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 (“Li”) at [25]-[33]. The Applicant respectfully adopts those paragraphs as if those paragraphs were repeated herein.
In the Applicant’s submission, the facts in this matter are on all fours with those in Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 (FC) (“A’s case”). [Other such cases are Phanouvong v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 1489 (Finn J), and Li] In both cases, the Form 866 submitted did not supply the information requested at question 36-40 and, here as in A’s case “the information that was not provided as directed in the form relat[ing] to the respondent's "specific claims under the Refugees Convention", a primary criterion for the grant of a Protection visa.” (A’s case at [44] per Merkel J, with whom Emmett and Finkelstein JJ agreed).
Further, in this case, the Applicant’s response to question 15, indicates that the Form is merely a precursor to the application.
In the Applicant’s submission the facts in this case are distinct from the situation in Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566. In Bal, the applicant had answered questions 37 to 40, by cross-reference to the answer given at question 36, being that “I have been repeatedly and severely tortured by police because of my political opinion and because I am Kurdish, and because I am a Christian. Detailed statement follows.”
As result of the cross-referencing the Court in Bal found that he had supplied sufficient answers to questions 37 and 40.
In the present case, there was no such cross-referencing. Questions 38, 39 and 40 remained unanswered. Although the Applicant did respond to question 37, it was merely to the effect that “I will be persecuted” which, in the Applicant’s submission, does satisfy the criteria of being a “specific claim” under the Refugees Convention as required by the Regulations as interpreted in Li.
…
In the Applicant’s submission, here as in A’s case, the information which was not provided in the Forms was his “specific claims” under the Refugee Convention. The Applicant’s responses to question 15 and to questions 36-40 make this clear. In the Applicant’s submission, the Form without more was not a valid application. It was merely the precursor of an application to follow.
Accordingly, it is submitted that the Respondent’s refusal to accept the Applicant’s 2005 application on the basis of section 48A of the Act is unlawful since no valid application has ever been made by him, and as a result, under section 47(1), the Respondent should consider the application he made in 2005.
The Applicant does not accept that he is estopped from raising the point relating to the invalidity of the Form as an “application” in 1996 (“the invalidity point”) under the principles of res judicata, issue estoppel or the principle explained by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”).
In the Applicant’s submission, no question of res judicata or issue estoppel arises, since the invalidity point has never been previously raised or adjudicated. The Applicant submits that in previous proceedings it was not unreasonable that he did not do so, since the question before the Court in proceedings SYG 2467 of 2004 was the validity of a determination of the Refugee Review Tribunal given on 2 December 1998, rather than the validity of the Form as a valid application, and according no Anshun estoppel arises.
However, were the Court to find that prima facie, the Anshun principles does apply, then in the Applicant’s submission, there are special circumstances in this matter which justify the exercise of the Court’s discretion not to estop the Applicant attempt to raise the invalidity point.
In BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at [38] a Full Court of the Federal Court (from which special leave to the High Court was refused), constituted by Carr, Tamberlin and Conti JJ stated that: [not reproduced].
The Applicant seeks to rely upon the following factors, as the “special circumstances” which mean that the Anshun principle should not be applied to this case with full rigour.
(a)these proceedings (including the issue of whether or not the Applicant is ultimately permitted to have a valid application duly considered by the Respondent) raise important issues concerning his life and liberty;
(b)the Respondent to these proceedings is a respondent by force of statute only, and is not subject to pressures of costs and time which often weigh on individuals who are litigants;
(c)the state of the authorities as at the time that the 1996 “application” was reviewed by the RRT was such that it was reasonable not to rely on the invalidity of the Form as an application as a ground of review, since the decision in A’s case was not handed down until 3 December 1999 almost a year after the RRT decision was made;
(d)the issue before this Honourable Court in SZEDD v Minister for Immigration [2005] FMCA 112 was not related to the invalidity question; and
(e)the consequences of allowing the Applicant to take the point would not go beyond inconvenience and expense to the Respondent, for which the Respondent could be at least partially compensated by a costs order.
In the Applicant’s submission, the findings of Sackville J in BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 and a Full Court in BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at [38], that factors such as those set out at (a)-(e) above, when taken together, constitute “special circumstances” even where any one of those factors taken on its own might not, should lead this Court to a similar finding in this matter.
In conclusion, the Applicant respectfully submits that, the Court should be satisfied that 1996 “application” was invalid and that neither res judicata¸ issue estoppel nor Anshun estoppel prohibit him from raising that point. However, even if Anshun estoppel does apply prima facie, then after examination of all the circumstances, the Applicant ought not be shut out from pursuing that point, and that the Application be allowed.
Reasons
The written submissions filed by the applicant contends that the amended application filed on 4 October 2005, challenges the decision of the delegate that the applicant’s second application for a protection visa lodged on 31 May 2005 was valid, and should have been considered by the Minister or her delegate. The structure of the argument relied on by the applicant was that the original visa application lodged on 31 December 1996 was incomplete in respect of questions 38, 39 and 40 of that application and these would be completed by a statement of the applicant to be lodged at a later date. However, before the applicant had an opportunity to complete the statement and lodge it with the Department, the delegate proceeded without any inquiry and purported to determine the application and refused to grant a protection visa.
Mr Kennett submitted that the extent that any “decision” was made in respect of the later application to the Department, it was a decision not to exercise the discretion vested in the Minister by s.48B of the Act. The basis of the applicant’s argument is that the new application did not come within s.48A of the Act and did not require the intervention of the Minister under s.48B. The applicant’s contention is that the application lodged on 31 May 2005 was a valid visa application and the Minister was obliged to deal with it. Consequently, the case does not raise an issue as to the scope of the discretion in s.48B, or the capacity of the Court to review decisions as to whether the discretion should have been exercised. The basis of the applicant’s argument is that his original protection visa application lodged in 1996 was invalid. The result being that the protection visa lodged on 31 May 2005 was the first valid visa application filed by the applicant.
Mr Kennett submitted that even if the applicant’s arguments were correct, relief should be refused in respect of issue estoppel and discretion. It was submitted that the validity of the 1996 protection visa application was an issue that went to the capacity of the Tribunal to make a decision on the merits of the applicant’s claim and hence to the validity of the Tribunal’s decision. Mr Kennett referred the Court to the exercise of a similar discretion in s.417 of the Act and considered in Minister for Immigration v Ozmanian (1996) 137 ALR 103 and Applicant S1083/2003 v Minister for Immigration [2004] FCA 1455. It was submitted that this was an issue that could and should have been raised in the earlier proceedings before the Tribunal and in this Court before Smith FM. It was argued that there are no special circumstances which would justify a departure from the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, which precludes the party from raising in later proceedings, a point which might have been brought forward in earlier proceedings: BC v Minister for Immigration (2001) 67 ALD 60.
The applicant’s written submissions raises the issue of validity of the applicant’s primary visa application made in 1996, an issue that has not been considered by the courts at any time. Mr Kennett argued that the applicant was a member of the Lie class action, after which he commenced his own proceedings in the High Court in 2003, which were subsequently remitted to the Federal Court and dealt with by His Honour Emmett J. The applicant then brought his own proceedings in the Federal Magistrates Court in 2004, which were heard by Smith FM and dismissed on 1 February 2005. Mr Kennett argued that all the case law suggests that the validity of a primary visa application is something that would be contested in subsequent litigation and the applicant has done so on at least two separate occasions. The written submissions prepared for the applicant raised the issue in these proceedings of the validity of the Tribunal’s decision of December 1998, rather than the validity of his own primary visa application.
Mr Kennett argued that the issue of validity of the application is an issue which, had it been raised, would have gone to the validity of the Tribunal’s decision. Mr Kennett relied on the Minister for Immigration v Li, which makes the point that if a primary visa application is invalid, that destroys any argument when it comes to the validity of the decision of the Tribunal. This was an issue when the applicant was challenging the Tribunal decision in the High Court and when subsequently remitted to the Federal Court. It was again in issue in the proceedings commenced in this Court in 2004, heard by Smith FM.
An argument that the applicant’s initial visa application had in fact been no application at all, was a point, had he raised it, would have been highly relevant to each of those proceedings. Mr Kennett submitted, and I accept the submission, that the principle in Anshun is one that applies in the present proceedings. The contention raised in the applicant’s submissions is that the Anshun principle would not be applied by the Court if there are special circumstances why it should not be. Those exceptions comprehend situations involving broad discretionary considerations relating to the notion of justice. The special circumstances that the applicant seeks to rely on is that these proceedings raise five important issues. Namely:
a)Important issues concerning the applicant’s life and liberty.
b)The respondent in these proceedings participates by force of statute only and is therefore not subject to pressures of cost and time.
c)The state of authorities at the time of the earlier court proceedings.
d)The matter of SZEDD was not related to the invalidity question.
e)The respondent could be partially compensated by a cost order.
I will deal briefly with those issues. With respect to issue (a), the applicant did not have a sound claim for refugee status when his application was considered by the delegate and that assessment has survived judicial review. If circumstances have changed in recent years, then that is an issue that should be raised with the Minister as a matter of ministerial discretion. That does not impinge on my current consideration. With respect to (b), it is acknowledged that the Minister is not a private litigant. However, the taxpayers, through the Minister, have costs to bear. With respect to (c) I accept the submissions that the authorities at the time of the Tribunal review would not have prevented the issues in the present case from being raised. As for issue (d), the applicant in SZEDD was challenging the validity of the first Tribunal decision but no submissions were made that that Tribunal decision had no foundation because there was no valid application. This issue was not raised and consequently does not form any part of the decision of SZEDD. Finally with respect to issue (e), there is no evidence to show whether the applicant would be in a position to meet a cost order. However the more important issue is the inconvenience, expense and drain on the resources and time of the respondent, and hence, on the wider community. This is not an issue that can be easily dispensed with as suggested in the applicant’s submissions.
The second limb of this argument raised by Mr Kennett, was that even if the Anshun principle did not preclude the raising of the applicant’s contention, relief should be refused on discretionary grounds. Mr Kennett argued that the applicant did not see fit to provide the further statement that he had promised, in the three months following the lodgement of his 1996 application. He failed to pursue his right to formally question the legal proprietary of the delegate’s decision to refuse him a visa. Instead, he applied to the Tribunal for a review of that decision on the merits, and presented a full argument at the hearing on the merits. Mr Kennett argues that having elected to initiate that process, the applicant should not be permitted to now disclaim it, nor should the applicant benefit from his own failure to lodge further material that he had promised: Bal v Minister for Immigration [2001] FCA 1191 at [22]-[29] per Madgwick J. This decision was subsequently upheld by the Full Federal Court but that decision focussed on other grounds.
Mr Kennett, in his written submissions, argued that these considerations are reinforced by the fact that the applicant has twice sought to set aside the Tribunal’s decision in judicial review proceedings, contending that the Tribunal erred by not dealing properly with his claim to be a refugee. The amended application filed on
4 October 2005 by the applicant’s then solicitors, takes a completely different position in that the Tribunal should not have dealt with the delegate’s decision on the basis that the delegate did not have the authority to deal with the original application because of its inherent invalidity.
The second major argument contained in Mr Kennett’s written submissions is that the applicant’s contention that the 1996 protection visa application was invalid is incorrect. He argued that the 1996 application contains answers to questions which were sufficient to articulate a claim to have been persecuted, and to fear persecution for a Convention reason. It was submitted that that was sufficient to constitute a valid application: Bal v Minister for Immigration (2002) 189 ALR 566 (“Bal”) at [34]-[45] per French, Lindgren and Stone JJ.
Mr Kennett referred me to Full Federal Court in Bal and Minister for Immigration v A (1999) 91 FCR 435. In both cases, the Full Court considered the completion of questions contained in protection visa applications. In Bal, the applicant gave a few brief answers to some of the questions and indicated that a statement would be forwarded at a later date. As in Minister for Immigration v A, the applicant had completed none of the answers, only commenting that a statement was coming. In Bal, although the answers had been completed in a vague and brief fashion, they contained the bare bones of a claim which enabled the decision-maker to proceed with their task. Bal was distinguished from Minister for Immigration v A, which contained no material in respect of the claim and did not provide the decision-maker with any material to undertake the decision-making process.
Mr Kennett argued that it is irrelevant that the claim thereby articulated was vague and unconvincing, or that the applicant said he wanted to submit a further statement. It was not necessary to have further statements going to the validity of the application or the power of the delegate and the Tribunal to deal with it. As the original application was partly completed, it was valid in Bal sense. The consequence is that the applicant is caught by s.48A of the Act, having made a previous protection visa application. He is not entitled to make a further application unless he can convince the Minister to exercise her power under s.48B.
Although the applicant appeared at the hearing as a self-represented litigant, he has had the benefit of pleadings and written submissions prepared by a legal practitioner familiar with the jurisdiction. The applicant relied substantially on that material but did not have the advantage of counsel to argue those points before the Court. The submissions made by the applicant in reply at the end of the hearing was limited to a review of the background of the applicant’s circumstances and a plea to the Court to return the matter to the Tribunal to put his case in greater detail and emphasise issues that he believed were critical to his circumstances.
Conclusion
The applicant appeared in this Court as a self-represented litigant and that places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186.
Mr Kennett, counsel for the respondents, assisted the Court with detailed written submissions, supplemented by comprehensive oral submissions. Although the applicant was not represented, he had the benefit of his application and his submissions as prepared by qualified legal practitioners familiar with the jurisdiction. Unfortunately, prior to the hearing, the solicitors representing the applicant had withdrawn, which meant that he did not have the benefit of representation in Court. However, I did have the benefit of his detailed written submissions which complemented the issues raised in his application. I am satisfied that none of the grounds pleaded in the application can be sustained. Neither is it apparent that any other ground of review exists which suggests that the delegate of the Minister has made a jurisdictional error in its decision to reject the applicant’s new application for a protection visa. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 18 April 2006
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