FEDERAL COURT OF AUSTRALIA

SZDYH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 351

MIGRATION – No point of principle

SZDYH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 30 OF 2005

MOORE J

8 APRIL 2005

SYDNEY

THE COURT ORDERS THAT:

1.      Time be extended for the application for leave to appeal.

2.      The application for leave to appeal be dismissed.

3.      The applicant pay the respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from orders of a Federal Magistrate made on 22 December 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").  The applicant arrived in Australia on 9 January 1997.  On 21 March 1997 she lodged an application for a protection visa, which was refused on 28 May 1997 by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister").  The applicant sought review of that decision by the Tribunal on 11 June 1997.  On 28 January 1998 the Tribunal sent the applicant its decision of 27 January 1998 affirming the decision not to grant the applicant a protection visa. 

2                     On 10 September 1998, the applicant became a party to the Herijanto class action (later joining the Muin class action: Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30).  Those proceedings of were remitted to the Federal Court.  On 20 February 2004, Emmett J refused the applicant's application for an order nisi (lead judgment: S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289) and ordered that O 51A r 5(1) of the Federal Court Rules not apply. 

3                     The applicant then applied to the Federal Magistrates Court for judicial review of the Tribunal's decision on 28 June 2004.  On 22 December 2004 the Federal Magistrate dismissed the application for two reasons.  The first was that the applicant had not complied with orders of 1 September 2004 requiring the filing of an amended application and the second was because of the unwarrantable delay for the periods 29 January 1998 to 10 September 1998 and 20 February 2004 to 28 June 2004.  The Federal Magistrate apparently had regard to the fact that no case of substance had been identified by the applicant.  I mention these matters to note that the judgment was an interlocutory one for which leave to appeal is required.

The Tribunal's decision

4                     The applicant is a citizen of Indonesia of Chinese descent.  She claimed to fear persecution on the grounds of race and religion.  She claimed to suffer discrimination because of her ethnicity, being bullied at school and then as an adult and being passed over for promotion in favour of 'native' Indonesians.  She also claimed that her 'native' Indonesian ex-fiancé had left his wife to be with her and his family had threatened her.  At the hearing before the Tribunal the applicant claimed she had never heard this story and her solicitor had made that claim without her knowledge.  She claimed to have a general fear because she was a Christian and there had been several incidents in which Christian churches had been burned in riots.

5                     The Tribunal noted "a range of independent information on Indonesia, particularly in relation to the treatment of the ethnic-Chinese community."  The Tribunal specifically referred to a chapter of a report entitled "United States Department of State Country Reports on Human Rights for 1996", a TAPOL Bulletin of April 1993 entitled "Discrimination Against the Chinese Minority" and a number of newspaper reports dating from 1994 to 1997.

6                     The Tribunal accepted that ethnic-Chinese in Indonesia face a level of discrimination from both the Government and the native Indonesian community but was not satisfied that the discrimination was sufficiently serious to amount to persecution.  Nor was the Tribunal satisfied that regular taunting by native Indonesians or being passed over for promotion were sufficiently serious to amount to persecution.

7                     The Tribunal accepted that a number of anti-Chinese riots had occurred from time to time in Indonesia and that the applicant held a general fear in relation to them.  However, there was no evidence that they personally affected the applicant in any other way.  The Tribunal found that the Indonesian authorities had taken steps to quell the riots and that there was no evidence that the Indonesian Government condoned such violence.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution as a member of the Chinese community.

The Federal Magistrate's reasons for judgment

8                     A directions hearing was held on 1 September 2004 in the Federal Magistrates Court and consent orders were made.  Order 2 required the applicant to file and serve an amended application giving complete particulars of each ground of review being relied on and any additional affidavit evidence by 29 October 2004.  Order 3 allowed the respondent to arrange for the matter to be listed in a non-compliance list if Order 2 was not complied with.  The matter was otherwise set down for hearing on 20 December 2004.

9                     During the hearing on 20 December 2004 the applicant said that she had been a client of Mr Adrian Joel and the Federal Magistrate asked whether she had been involved in the Muin/Lie class action. She denied that she had been.  The respondent's solicitors discovered after the hearing that the applicant had, in fact, been involved in the class action. The respondent filed and affidavit dealing with the applicant's participation in the class action and the matter was re-listed on 22 December 2004 for a hearing of further submissions.

10                  In determining whether there was delay in bringing the application for review, the Federal Magistrate noted the applicant was protected from any claim of delay between the time the applicant joined the class action and the decision of Emmett J on 20 February 2004 in which his Honour noted that the Minister would not raise the refusal of an order nisi as a bar to the commencement of a fresh proceeding claiming the same relief.  Excluding the period while Muin/Lie class action was on foot, the delay in bringing the application was over 11 months. 

11                  The Federal Magistrate was satisfied the delay in bringing the application for review was unexplained, the applicant had failed to comply with directions and there was no jurisdictional error apparent in the Tribunal's reasons for decision.  The Federal Magistrate dismissed the application. 

The appeal and its disposition

12                  On 10 January 2005 the applicant filed a notice of appeal.  On 23 February 2005 the applicant filed an application for leave to appeal together with an affidavit sworn the same day.  Written submissions were filed on 10 March 2005 though they primarily addressed the question of why the application for leave to appeal was filed out of time.

13                  In my opinion, the applicant has not demonstrated that there is any real prospect of success in an appeal if leave were granted.  Time would need to be extended for the applicant to file the application for leave.  Given that steps were taken to lodge an appeal on 10 January 2005, nothing turns on the delay in bringing the application for leave.  The applicant has no real prospects of success in the appeal because it is clear that she failed to comply with the direction designed to elucidate whether she had a case of substance.  The Federal Magistrate plainly had a discretionary power to dismiss the application for non-compliance with the direction and there is nothing in the material to suggest that the discretion miscarried.  It is unnecessary to deal with the additional question of whether the Federal Magistrate was also entitled to dismiss the application because of delay. 

14                  Time should be extended for the application for leave to appeal but the application should be dismissed with costs.

Associate:

Dated:              8 April 2005