SZGYU v Minister for Immigration

[2006] FMCA 1881

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1881SYG2178

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – applicant’s motion for reinstatement – whether explanation for failure to appear is reasonable – whether any utility in allowing applicant to file amended application – balance of interests of justice between parties.

Migration Act 1958 (Cth), ss.417; 424A; 424A(3); 425; 427

Federal Magistrates Court Rules 2001

Applicant: SZGYU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2178 of 2005

Judgment of: Emmett FM

Hearing dates: 28 & 29 November 2006

Date of last submission: 29 November 2006

Delivered at: Sydney

Delivered on: 29 November 2006

REPRESENTATION

Counsel for the Applicant: Mr T. Ower

Solicitors for the Applicant:

Counsel for the Respondent:
Solicitors for the Respondent:	Mr I. Muthalib, Blake Dawson Waldron

ORDERS

(1)That the name of the first respondent be amended to Minister for Immigration & Multicultural Affairs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2178 of 2005

SZGYU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By notice of motion filed in this Court on 27 October 2006, the applicant seeks an order reinstating his proceeding commenced in this Court by way of application filed on 15 August 2005, seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 July 2005.  The applicant seeks an order reinstating that application.

2. In support of that application, the applicant reads an affidavit affirmed by him on 16 November 2006, which states as follows:

   “1. I am the Applicant in these proceedings and am currently detained at Villawood detention centre.

   2. The Second Respondent delivered its decision in my matter on 27 July 2005.

   3. On 15 August 2005 I filed my appeal in SYG 2178 of 2005. At the time, I did not have the benefit of transcript of the hearing but I understood that it was necessary to file the appeal as soon as possible to preserve my rights.

   4. I received the “Relevant Documents” from the Respondents solicitors shortly after 18 October 2005.

   5. I showed the relevant documents to my friends, who are not legally qualified, and they advised me that I would probably lose my appeal. At this stage, I still did not have the transcript of the hearing before the Second Respondent.

   6. I was aware that my matter was listed for hearing on 22 November 2005. I understood that I could discontinue my appeal and this would have the effect of keeping the matter “on hold” whilst I pursued my request for Ministerial Intervention pursuant to s.417 of the Act. Bearing in mind the potential costs of a hearing and, wrongly thinking that I could reinstate my appeal at any time, I discontinued matter SYG 2178 of 2005 on 22 November 2005.

   7. I applied for Ministerial Intervention on16 (sic) December 2005.

   8. On 18 September 2006 I was advised that the Minister refused my application.

   9. On 12 October 2006 I obtained a transcript of my hearing before the Second Respondent. A copy of that transcript is attached hereto and marked with the letter “A”. I believe the transcript discloses jurisdictional error and I respectfully ask the Court to reinstate my appeal or, in the alternative, grant me leave to file a fresh appeal.”

3. The applicant also relied on an affidavit of Deborah Ruth Nicholls, sworn 21 November 2006, verifying annexure A to the applicant's affidavit, being a transcript of the hearing before the tribunalTribunal.  That evidence was admitted without objection from the first respondent. 

4. The applicant was represented by counsel during the application and was cross-examined examined.on the affidavit evidence that he had given.  

5. The reinstatement application arises, as I have said earlier, from orders made by this Court on 22 November 2005, granting leave to the applicant to file a notice of discontinuance signed and dated by him. 

6. His The applicant’s

   original proceeding was set down for hearing on

   
   

   22 November 2005, at a directions hearing on 132 September 2005, at which the applicant attendedattended by the applicant .  There was no document received by the Court prior to the hearing of the matter on 22 November 2005 in the nature of a notice of discontinuance and the applicant appeared on that day before this Court unrepresented although hawithd the assistance of an interpreter. 

7. For the sake of completeness I note that the applicant and his counsel both acknowledged that the applicant does not need an interpreter and that his command of English is sufficient to enable him to understand what is being said.

8. The order discontinuing the applicant's proceeding was an order sought by the applicant on 22 November 2005., consented to by Tthe first respondent and made by the Court upon the application of the applicant consented to the order..  It was an order made 12 months ago and it was not until 27 October this year2006, more than 12 months later, that a motion was received by this Courtfiled by the applicant seeking reinstatement of that proceeding. 

9. In his affidavit, the applicant states that the reason that there has been the delay is two-fold.  The first is that, having received advice from friends that an application to this Court for judicial review of the Ttribunal proceeding had little chance of success, he had sought to discontinue his proceeding.  The applicant gave evidence that, indeed, soon after filing his initiating application, he had sought to file a notice of discontinuance and whilst in detention.  He said he had understood that a copy had been faxed from the detention centredepartment to the Court. and He said that it was not until a few days before the hearing date of 22 November 2005 that he became aware that that document had not been successfully faxed through by the department to the Court and that the Court was still expecting the applicant to attend a hearing on 22 November 2005. 

10. The applicant gave evidence that, shortly before the hearing set down in this Court on 22 November 2005, he met with a panel adviseer, namely Mr Michael Jones. , and The applicant said that he signed the notice of discontinuance tendered provided to the Court on 22 November 2005 in the presence of
    Mr Jones and requested Mr Jones to forward that document to the Court. 

11. The applicant stated that he was aware that he could appeal the tribunalTribunal's decision but, in accordance with advice from friends that he had received, had chosen to pursue a request for mMinisterial intervention pursuant to s.417 of the Migration Act 1958 (Cth) (“the Act”). 

12. In his affidavit, the applicant stated that, on 18 September 2006, he was advised that the Mminister had refused that request. and He said that, on 12 October 2006, he obtained a transcript of his hearing before the tribunalTribunal and that the transcript revealed to him that the tribunalTribunal decision was affected by jurisdictional error. 

13. The affidavit did not disclose what that jurisdictional error was and nor was the applicant in cross-examination able to give any meaningful submission evidence in respect of any jurisdictional error. 

14. The applicant's motion for reinstatement was not accompanied by a draft amended application, despite being represented by counsel.  However and for that reason, in the interests of justice,, an adjournment was granted yesterday to the applicant to enable a draft amended application to be prepared in support of the applicant's motion for reinstatement.  That document was provided to the Court this afternoon by counsel for the applicant and is marked ‘eExhibit 1A’ in the applicant's motion. 

15. In considering the applicant's motion, the overriding consideration for the Court is the interests of justice balanced in respect of the interests of each of the parties.  The applicant had an opportunity to pursue an the application filed by him on 15 August 2005 in this Courtseeking judicial review of the Tribunal’s decision..  For constitutional relief in respect of the tribunal's decTision, the applicant, as I stated, attended the hearing set down for that application and requested that the Court accept for filing his notice of discontinuance. 

16. Whilst I accept that the applicant may well have taken theat step of discontinuing upon advice from friends. , However, I have regard to the fact that the applicant also chose to pursue an the avenue of requesting of ministerial Ministerial intervention, rather than pursue his appeal. , Moreover,that he took no step to seek to obtain a transcript of the hearing before the tribunalTribunal until after he had received a rejection from the mMinister of his application., nor did he seek reinstatement of the motion. 

17. I also have regard to the fact that the applicant met with a panel adviser and I note that the adviser was Michael Jones, a practitioner with experience and knowledge in the area.  The applicant stated, in cross-examination, that he did not recall whether or not he discussed with Mr Jones the panel adviser whether he should file - whether or not he should file his notice of discontinuance, because in his mind he had decided, prior to the meeting with Mr Jonesthe panel adviser, that he was going to proceed with his s.417 application, rather than his Court proceedings. 

18. That is a matter entirely for the applicant, however, I cannot ignore the fact that thereThere have been many opportunities for the applicant to have pursued his application before this Court up until the time he sought leave of the Court to file his notice of discontinuance. 

19. I also have regard to the interests of the community as a whole in having these administrative decisions resolved.  An applicant must accept responsibility for the consequences of his actions.  There has been some significant period expired from when the Court's order was made, granting leave to the applicant to file his notice of discontinuance, and the applicant's motion today.  I do not regard the applicant’s explanation of having recently obtained a transcript and listening to advice from friends as a satisfactory and reasonable explanation of why he took no earlier steps to attend the hearing on
    22 November 2005 or make an earlier application for reinstatement.  The public interest in having finality in respect of administrative decisions must also be considered in balancing the interests of justice between the parties.  It was open to the applicant to obtain a transcript at any time, to choose not to listen to advice from his friends and, at least, to seek advice from the panel adviser about his rights.

20. In considering the applicant's motion, I also have regard to the draft amended application provided to the Court in support of the applicant's application today.  The amended application purports to rely on five grounds, set out as follows:

    “1. The Second Respondent failed to accord the Applicant procedural fairness pursuant to s.425 of the Act or at all in that it did not allow the Applicant time to adduce documentary evidence from police records held in Mozambique. The Second Respondent should have extended the time for review pursuant to s.427(1)(b) in this regard.

    2. The Second Respondent failed to properly exercise jurisdiction by making assumptions about “effective state protection” without any evidence.

    3. The Second Respondent failed to properly exercise jurisdiction by ignoring the Applicant’s claim that he was last “warned” by his brother about the dangers of returning to Mozambique in March 2005 (see transcript p.8).

    4. The Second Respondent failed to discharge its obligation pursuant to s.424A of the Act in that. In so far as it relied upon any of the material contained in the Applicant’s application to the First Respondent, written particulars of such information should have been provided to the Applicant for his comment.

    5. The Second Respondent’s finding that “no threats” had been made by the Zimbabweans who visited the Applicant’s family home failed to address a critical part of the Applicant’s claim and ignored the evidence (see CB p.9-10).”

21. The first groundGround 1 alleges a denial of procedural fairness by the tribunalTribunal in failing to comply with its obligations pursuant to s.425 of the Act. Section 425 of the Act obliges the tribunalTribunal to invite the applicant to appear before the tribunalTribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

22. On 1 July 2005, the applicant was sent a letter by the tribunalTribunal informing him that the tribunalTribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.  The letter went on to invite the applicant to come to a hearing before the tribunalTribunal to give oral evidence and present arguments in support of his claims.  The applicant then attended a hearing before the tribunalTribunal, at which he gave oral evidence.  To the extent that Gground one 1 alleges a breach of s.425 of the Act, such a ground has no reasonable or any prospect of success.

1.To the extent that ground one complains that the tribunal should have extended time for the review to allow the applicant to adduce further documentary evidence; there is no evidence before me of any evidence that was before the tribunal of any evidence by the applicant of attempts made by him to obtain documents from Mozambique of the nature to which he referred; namely police reports.  I note that the applicant arrived in Australia in 1999 and did not make a protection visa application until 2005.  There was obviously ample time for the applicant to attend to obtain whatever documentary evidence he may seek to rely upon in support of a protection visa application. 

1. It is not clear from the transcript whether the applicant was seeking an adjournment in the terms of s.427 of the Act.  However, giving the applicant the benefit of the doubt, assuming that the applicant was making an application for an adjournment to enable him to obtain those documents, in any event, the tribunalTribunal purported to exercise the discretion that it has in relation to any such adjournment for the purposes of proceeding(?)receiving the documents. 

2. The transcript makes clear that the applicant was asked by the tribunalTribunal exactly what the documents were that he was waiting for:

   “APPLICANT: And I was expecting to get some document from Mozambique.

   Member: Yes, you mentioned that before. What exactly are you waiting for?

   APPLICANT: I want to get a like the report from the police.

   Member: About your cousin’s death? No?

   APPLICANT: About my cousin’s death and about me putting a complaint about what happened to me.

   Member: So the police report about you will be like a file not at the local police station at Beira which sets out the facts that three men came to your house and asked your family where you were and so on? So that’s that would be what was in your local police station and the one about your cousin’s death would be the facts of his case and the way he died and statements of his friends saying there had been questions about Zimbabwe and so on. Well, I mean, I accept that these things were reported and so on and so on, but I’m not sure that it will advance us, I won’t wait for them, because I’m not sure that it will actually help me any further. I accept that you did report it and you’re not complaining about what the police did, simply that there was no positive outcome for you, I mean, they did the right things, they wrote it all down and so on, but they didn’t find the men who came to your place, and nor did they find the criminals who bashed your brother, your cousin.”

3. It is clear from the transcript that the tribunalTribunal had regard to the request by the applicant for an opportunity to obtain documents and that the tribunalTribunal clarified with the applicant that the nature of those documents was police reports. 

4. The police reports arose from the applicant's claim that he made reports to the police about approaches by the police to his home and in relation to his cousin's death.  The tribunalTribunal accepted that these matters were reported, and that in its decision made clear that the report would not, in its view, disclose the motivation behind any such attacks.  To the extent that Ground 1 complains that the Tribunal should have extended time for the review to allow the applicant to adduce further documentary evidence, there is no evidence before me of any evidence that was before the Tribunal as to attempts made by the applicant to obtain the police reports from Mozambique.  I note that the applicant arrived in Australia in 1999 and did not make a protection visa application until 2005.  There was obviously ample time for the applicant to attempt to obtain whatever documentary evidence he may seek to rely upon in support of a protection visa application. 

5. Ground one 1 does not in any way identify how the discretion of the tribunalTribunal miscarried in relation to its decision to proceed with its review on material before it and, without any such particular, the ground does no more than disagree with the decision of the tribunalTribunal.  In those circumstances, gGround one 1 has no reasonable prospects of success.

6. Ground two 2 is a complaint that the tribunalTribunal made assumptions about effective state protection without any evidence.  Counsel for the applicant conceded that the tribunal - the conclusions of the tribunalTribunal were not based on consideration of effective protection. and  Counsel for the applicant relied on in support of that ground to the finding by the tribunalTribunal that “Tthe fact that there was no particular outcome that was pleasing to the aApplicant [arising out of reports to the police] was not indicative of the fact that the police had not performed their duties or that there was no effective state protection”.  I do not understand that mention of no effective state protection finding to be a considered one finding by the Tribunal of whether or not there was effective state protection,. Rather, it was simply an observation that the fact that the applicant did not or was not pleased with the outcome of reports made to the police would not have supported any sucha contention that they had not performed their duties.  For those reasons, in my view, Gground two 2 has no reasonable prospects of success.

7. Ground three 3 was distilled by counsel for the applicant as a claim that the tribunalTribunal erred in not making a finding that the applicant's brother had warned the applicant in March of 2005 that Mugabe supporters were still looking for him.  Counsel for the applicant submitted that the transcript, at page eight 8, disclosed a claim by the applicant that he was still in danger from Mugabe supporters as at March 2005.  That submission, to my mind, does not disclose any new ground.  It is unremarkable that the applicant may continue to be in fear in March of 2005. 

8. In relation to whether the tribunalTribunal erred in not making a finding that his brother gave him a warning or not;, in my view, there was nothing in claims before the tribunalTribunal that would have obliged it to make such a finding.  Even if the tribunalTribunal had made such a finding, in accordance with the evidence of the applicant, it would have done no more than simply affirm that the applicant, as at the date of the hearing before the tribunalTribunal, retained a fear of persecution from Mugabe supporters, were he to return to Mozambique.  For those reasons, gGround three 3 does not, in my mind, disclose any ground with reasonable prospects of success.

9. I note in relation to gGround three 3, the first respondent's submission that, at Court Book 66.6, the tribunalTribunal noted its exchange with the applicant and noted that the applicant’s brother told him that it was not safe in Maputu and that the applicant maintained his claim of a likelihood of harm in Mozambique at the hands of Zimbabwean agents.  

1. Turning to Gground four4,; there are no particulars in support of gGround four 4. Ddespite being asked on more than one occasion, counsel was unable to identify any information that was information that was not otherwise excluded by s.424A(3) of the Act and was information that was part of the reason for affirming a decision under review. Counsel for the applicant was unable to identify any use by the tribunalTribunal of any information contained in the applicant's protection visa application by the tribunalTribunal that may have been part of the reason for affirming the decision under review, other than the reference by the tribunalTribunal in the ‘Cclaims and eEvidence’ section of its decision of a recitation of those claims.  In those circumstances,; gGround four4, in my view, has no reasonable prospects of success, where counsel for the applicant is unable to identify any information that may have enlivened the obligations of s.424A of the Act.

2. Turning to Gground five5,; counsel for the applicant submitted that a finding by the tribunalTribunal that no threats had been made by the Zimbabweans who visited the applicant's home was not consistent with the evidence before it.  In support of that contention, counsel for the applicant referred the Court to Court Bbook page 65 at point three, where the tribunalTribunal stated the following:

   “The tribunalTribunal put it to the aApplicant that there was little evidence that any of these events apparently involving Zimbabweans were adversely targeted at the Aapplicant.  He had mentioned two visits by people whom he presumed to be Zimbabwean to his home.  They had made inquiries about him, but there had been no threats and no harm visited on the house or any members of the family.”

3. First,; that statement by the tribunalTribunal is in the ‘Cclaims andof eEvidence’ section of its decision and is plainly intended to be a summary of the evidence as the tribunalTribunal understands it to be.  Counsel for the applicant referred the Court to the applicant's claims in his protection visa, where he stated, relevantly, at Court Book page 190:

   “On the 12th of4 June 1998 three men came to our family home at night in Beira, (Mozambique), and questioned my family of my whereabouts.  My family told them I had gone to the capital city, Maputuo, though I was still in Beira.  On that occasion my family were harrassed (sic) but not physically hurt.”

4. At Court Bbook 10:

   “…Mugabe’s supporters knocked the door of at our Beira house (Mozambique) and asked what I had travelled to Australia for.  This was around October 1999.  As my brother explained to them that I had come to study, they denied and insisted that I had come to Australia seeking political and financial support for the newly -formed mMovement for dDemocratic cChange, NMDC.  They told my brother they wanted to interrogate me upon arrival in Mozambique.  This "interrogation" only means torture at the very least.”

5. The applicant does not allege that any harm arose to any members of his family on either of those visits.  However, counsel for the applicant states submits that the use of the wordin saying, no, "threats", had been made, the Tribunal did that there had been no threats, does not accurately reflect the evidence to which I have just referred.  However, in an earlier section part of the ‘Cclaims and eEvidence’ section of its decision, when the tribunalTribunal is summarising the applicant's claims made in protection visa application, the tribunalsummarises the applicant’s claims in his protection visa application as follows states:

   “The aApplicant claims that if he returns to Mozambique he can expect to be kidnapped and tortured, or even more likely, assassinated.”

6. It is that claim that is at the heart of the applicant's claims before the tribunalTribunal.  In  and in my view, there is no argument with any reasonable prospects of success that by using the words, "threats", "no threats" to summarisinge the applicant's claims as not disclosing threats, the tribunalTribunal fell into jurisdictional error.  It is clear that the Tribunal was aware of the claims made by the applicant about the conduct he feared. The Tribunal considered the applicant’s claims and made findings. Those findings were open to the Tribunal on the evidence and material before it, and for which it provided reasons.

7. In those circumstances there is, in my view, the draft amended application has no reasonable prospects of success. and in those circAccordingly,umstances, even if I were persuaded that the explanation by the applicant for the reasons why he sought an order of the Court for leave to file a notice of discontinuance were was satisfactory, in my view there would be no utility in granting the orders sought.  Accordingly, the applicant's submission motion is dismissed.

RECORDED  :  NOT TRANSCRIBED

1. The first respondent seeks costs fixed in an amount of $1500.  I note that the applicable scale is the costs schedule attached to the old costs schedule attached to the Federal Magistrates Court rRules 2001.  I note that the sum sought is less than the amount that would be provided under that costs schedule and the application is not opposed by the applicant. 

2. I further note that the extra costs expended by the second hearing today, in my view, was a matter for the applicant, where the applicant was afforded a further opportunity to provide evidence that plainly should have been available yesterday at the hearing for of the motion.  In all the circumstances, I am satisfied that the costs sought are reasonable and I order that the applicant pay the first respondent's costs fixed in an amount of $1500.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty seven forty (4037) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  18 December 2006

[FMCoA1]SYLVIA – CHANGE TO ‘Ground 1’?