SZIJA v Minister for Immigration
[2008] FMCA 238
•27 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 238 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether application is an abuse of process – prior judicial proceedings in respect of Refugee Review Tribunal decision. |
| Federal Magistrates Court Rules 2001 r.44.12(1)(a) |
| SZIJA v Minister for Immigration & Multicultural Affairs [2006] FMCA 610 SZIJA v Minister for Immigration and Multicultural Affairs [2006] FCA 1484 |
| Applicant: | SZIJA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2567 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 February 2008 |
| Date of last submission: | 27 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2008 |
REPRESENTATION
| Applicant appeared on his own behalf with a Hindi interpreter |
| Solicitors for the Respondent: | Ms D. Watson, AGS |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2567 of 2007
| SZIJA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant claims to be entitled to a protection visa application by reason of a fear of persecution for political opinion or imputed political opinion arising out of his political activities in India.
The applicant arrived in Australia on 19 August 2005 and lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affiairs (“the Department”) on 12 September 2005.
On 20 October 2005 a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 3 November 2005 the applicant lodged an application for review of the Delegate's decision with the Refugee Review Tribunal (“the Tribunal”). In support of that application the applicant provided a letter received by the Tribunal on 3 November 2005 in which he expanded upon his claims.
On 16 November 2005, the Tribunal notified the applicant in writing that it 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 requested the applicant to complete a response to hearing invitation form indicating whether or not he wished to attend a hearing on 19 December 2005 and invited the applicant to send any new documents or written arguments he wished the Tribunal to consider.
On 15 December 2005, the applicant wrote to the Tribunal stating that he did not wish to attend a hearing and requesting the Tribunal to “kindly look into my case and take the appropriate decision.”
The Tribunal had regard to the material provided by the applicant in support of his application and found that the applicant had not provided sufficient detail of his claims to satisfy the Tribunal that there was a real chance that the applicant may be persecuted for reasons of his political opinion or membership of any particular social group for any Convention-related reason. The Tribunal also noted that there was no evidence provided to it by the applicant of any medical condition that may have prevented the applicant from attending the hearing.
On 21 December 2005, the Tribunal affirmed the decision under review.
On 2 February 2006, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision. In support of that application the applicant attached a letter that is in the following terms:
“I, [SZIJA], am seeking protection from Australian Government. DIMIA decision was not in my favor and subsequently I sought review on my case with the Refugee Review Tribunal but unfortunately I didn’t get the justice about my situation.
I would like to appeal in the Federal Magistrates Court to review my case and do the needful.
R.R.T. states that I didn’t provide evidence regarding the murders of my two of my group members. Based on this point they have taken the decision but I already stated that now the ruling party is different and it is trying to wipeout all the evidences of its party members misdeeds.
R.R.T. has raised a point about the number of our group members here I believe authorities know tha constituency contains number of small area and each area might have less of more number of very active party members.
I submitted the evidence of my party membership identity card and renewal slip of the membership, which proves my activities in the political party.
I didn’t attend the schedule hearing of R.R.T. because I was mentally depressed as I am struggling hard financially because DIMIA has not given me permission to work.
I request you kindly look into the matter and review my case and do the needful.”
The orders sought by the applicant in that application are as follows:
“1. R.R.T ordered for evidences for the murdering of two of my group members. But as the opposition party is ruling they [cut off] wiped out the evidences.
2. R.R.T. has raised a point about the number of our group members here I believe authorities know that Constituency [cut off] contains members of small area and each area might [cut off] have [illegible word] or more number of very active party memb[cut off].”
On 3 May 2006, Driver FM of this Court dismissed the applicant's application pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (SZIJA v Minister for Immigration & Multicultural Affairs [2006] FMCA 610). Driver FM noted in his decision that leave had been given to the applicant to file an amended application, which the applicant did. Driver FM’s decision identified the grounds in the amended application as follows:
“The first is that the RRT erred in that it did not set out in its reasons for decision, dated 21 December 2005, adequate reasons for holding that it was unable to be satisfied that there was a real chance that the applicant would be persecuted by reason of his political opinion or social group membership, should he return to India. The particulars are that the evidence before the RRT was capable of establishing that the applicant was in fact a refugee. The RRT (court book, pages 71 and 72) did not explain why it was not satisfied on that evidence.
…
The second ground is that the RRT erred in that it did not determine the substantial matters that were in issue before it and thereby failed to properly exercise its jurisdiction. The particulars are that the RRT noted the applicant’s written evidence that two members of his party had been killed and that false claims against party members had been filed which had resulted in gaol terms for the members. The RRT did not reject this evidence nor determine that it was not cogent nor that it lacked credibility.”
It is apparent from Driver FM’s decision that he had regard to the Tribunal’s decision and the reason for it affirming the decision under review. Driver FM noted that the amended application had been prepared with the assistance of counsel. Driver FM concluded that the amended application failed to disclose an arguable case and, in the circumstances, dismissed the proceeding.
On 17 May 2006, the applicant filed a notice of appeal with the Federal Court of Australia from the decision of Driver FM. Essentially the letter in support of the Notice of Appeal reiterated the applicant’s grounds before the Federal Magistrates Court in respect of his complaints about the Tribunal’s decision.
On 13 November 2006 Tracey J of the Federal Court of Australia dismissed the appeal (SZIJA v Minister for Immigration and Multicultural Affairs [2006] FCA 1484). Again, it is apparent from Tracey J’s decision that he had regard to the decision of the Tribunal. In particular, Tracey J noted that:
“the task of the Tribunal is to come to a judgment, based on the evidence before it, as to whether an applicant might face persecution for Convention reasons if returned to his or her country of origin. Any such judgment must, however, be based on evidence. The Tribunal in this case, found itself in the unhappy position of having insufficient evidence before it to enable it to form the necessary judgment one way or another. In these circumstances it could not engage in conjecture or surmise.”
In the circumstances, the application for leave to appeal to the Federal Court was dismissed.
On 4 December 2006 the applicant filed an application for special leave to appeal from Tracey J's decision to the High Court of Australia. In refusing special leave to appeal, Kirby J again had regard to the Tribunal's decision. Kirby J concluded by saying that the grounds of appeal are:
“disjointed and have the appearance of having been adapted from cases on facts far removed from those he asserts. They identify no arguments which would have any prospects of success. The application must, therefore, be dismissed.”
On 20 August 2007 the applicant filed the present application in this Court seeking judicial review of the same Tribunal decision. The grounds relied on are as follows:
“1. The Tribunal made jurisdictional error not considering my fear of persecution for my political belief and refused my application.
2. The Tribunal exceeded its jurisdiction or denied procedural fairness in that the Tribunal failed to consider me as a credible witness for my claims and affirmed the decision without considering the risk of harm I shall experience on my return back to India.
3. The Tribunal made an error of jurisdiction not considering the evidences I have provided for my claimed persecution and the reasons in the submissions prior to the decision. The Tribunal failed to consider that I have no well founded fear of persecution for a convension(sic) related reason in my previous country of residence, India.
4. The Tribunal made errors of jurisdiction for its failure to inform me of the adverse information from the country information they have considered to refuse my application. The Tribunal totally ignored my fear of persecutions related to the activities as an activist of Telegu Desam Party and it should also be considered as an error of jurisdiction.”
The applicant attended two directions hearings before this Court, one on 11 October 2007 and one on 5 December 2007.
On 11 October 2007, the applicant attended a directions hearing before Scarlett FM. On that occasion the applicant was given leave to file and serve an amended application giving complete particulars of each ground to be relied upon, any evidence upon which he intended to rely, including a transcript of the Tribunal hearing, and written submissions. The applicant filed no document in accordance with those directions and the matter was set down for a show cause hearing on 12 December 2007 before me.
On 12 December 2007, the applicant was once again given a further opportunity to file and serve an amended application, evidence and submissions in support of his application. Again no further document was filed by or on behalf of the applicant.
The applicant is unrepresented before this Court this morning, although has the assistance of an interpreter. The applicant made no meaningful submissions in support of his application. Rather, the applicant stated that he wished to stay in Australia until the elections in India had passed.
The first respondent's solicitor, Ms Watson, confirmed that the first respondent relied on an amended response filed on 7 December 2007 in which the first respondent seeks the following orders:
“(a) The proceeding before this Court, commenced by way of application filed on 20 August 2007 is dismissed with costs.
(b) No further application for review for the RRT decision dated 21 December 2005 and handed down on 17 January 2006 (RRT reference N05/52604), or the delegate’s decision dated 20 October 2005, be accepted for filing in this Court except by leave of the Court.”
The first respondent submitted to the Court that it was appropriate that the Court not proceed to entertain the applicant's application on the basis that to do so would be an abuse of the Court's process in light of the procedural history as referred to above in these Reasons.
The first respondent read the affidavit of Brooke Marie Griffin, affirmed 7 December 2007, which annexed the prior judicial decisions in respect of the Tribunal's decision dated 21 December 2005. As stated above in these Reasons, the grounds of the application presently before the Court are bare assertions of error and do not disclose any error capable of review by this Court. For whatever reason, the applicant has not filed any document in this Court in support of his application despite having been given leave on two occasions.
There has been no attempt by the applicant to comply with directions of this Court. None of the grounds in the present application disclose any allegation that was not otherwise dealt with before Driver FM. Each of the Federal Magistrates Court, the Federal Court and the High Court had regard to the Tribunal’s decision in concluding that the applicant had no arguable case of establishing that the Tribunal’s decision was affected by jurisdictional error. In the circumstances, I am satisfied that to allow the applicant to proceed with his application would be an abuse of this Court's process and bring this Court into disrepute.
Accordingly, the proceeding before this Court is dismissed with costs.
The first respondent seeks the following order:
“No further application for review of the RRT decision dated 21 December 2005 and handed down on 17 January 2006 or the delegate’s decision dated 20 October 2005, be accepted for filing in this Court except by leave of the Court.”
For the same reasons that I have found that the filing of this application is an abuse of the Court’s process, it is appropriate that the order sought by the first respondent be made.
Accordingly, I order that no further application for review of the Tribunal decision, dated 21 December 2005 and handed down 17 January 2006 or the Delegate’s decision, dated 20 October 2005, is to be accepted for filing in this Court except by leave of the Court.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 6 March 2008
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