FEDERAL COURT OF AUSTRALIA

SZCEC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 361

MIGRATION – application for leave to appeal

NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1526 referred to

Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 185 referred to

NAQB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 562 referred to

SZCEC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1788 OF 2004

MOORE J

8 APRIL 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The application for the enlargement of time in which to seek leave to appeal be dismissed.

2.      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 judgment concerns an application for leave to appeal from an order of a Federal Magistrate of 4 November 2004 dismissing the applicant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") under Rule 13.03 of the Federal Magistrates Court Rules 2001.  On 2 December 2004 the applicant filed in this Court the application for leave to appeal, an affidavit in support of that application and a draft notice of appeal.  By his application for leave to appeal the applicant also sought an order dispensing with the requirement that the application be filed within 21 days, as it was filed seven days out of time:  see O 52 r 5(2) of the Federal Court Rules. 

Background

2                     The respondent's submissions conveniently set out the background to these proceedings and are briefly summarised.  The applicant is a citizen of India and arrived in Australia on 22 March 2002.  He applied for a protection visa (Class XA) on 19 April 2002, which was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") on 24 June 2002.  On 23 July 2002, he sought review of that decision by the Tribunal.  The Tribunal affirmed the Minister's decision on 21 October 2003, handing down its reasons for decision on 13 November 2003.  On 12 December 2003, the applicant sought judicial review of that decision in the Federal Magistrates Court under s 39B of the Judiciary Act 1903 (Cth).

3                     Before the Tribunal, the applicant claimed he had been persecuted in India because he was Muslim, had stood as an independent candidate in Tamil Nadu in 2001 and had been targeted by police and opposition parties.  For a number of reasons the Tribunal was not satisfied the applicant had a well founded fear of persecution for a Convention reason.  A search of the Indian Election Commission's website revealed the applicant was not a candidate for the constituency claimed.  He had incorrectly named the Communist Party successful in the election in the constituency the applicant claimed he had contested.  He had not provided any evidence there was a real chance of persecution because he was Muslim and, generally, the Tribunal did not find the applicant a credible witness. 

4                     On 13 May 2004, a Registrar of the Federal Magistrates Court made orders including that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 8 August 2004.  The applicant did not comply with that order, and the matter was listed for a non compliance hearing on 11 October 2004 before Federal Magistrate Driver.  On 11 October 2004, the applicant filed in court an amended application.  On 11 October 2004, Federal Magistrate Driver ordered, first, that grounds one and two of that amended application be struck out and, secondly, that the applicant file and serve on the respondent a statement of particulars of grounds three to nine within 21 days.  Thirdly, His Honour ordered that, in default of compliance with that order, the respondent may apply for an order in chambers dismissing the application with costs for non compliance with the Court's orders or on the basis that no reasonable cause of action was disclosed, without further reference to the applicant.

5                     On 27 October 2004, the applicant filed a further amended application, also styled "amended application" ("the further amended application").  In terms, the further amended application filed on 27 October 2004 was identical to the amended application filed on 11 October 2004 but for one addition.  After first setting out the first two grounds for review (that had been struck out by the Federal Magistrate on 11 October 2004) the applicant set out the following:

Particulars & Grounds

In the RRT decision the tribunal member "FINDING AND REASONS FOR DECISION" second paragraph mention that "the Applicant was an unimpressive and on more than one occasion" it is not accepted by me because I am not familiar with the proceedings of Tribunal hearing.

*  I will provide more details at the time of hearing and in my written submission.

6                     On 3 November 2004 the respondent sought an order in chambers that the application be dismissed for failure to comply with order 2 of the Federal Magistrate's orders made on 11 October 2004 on the basis that the applicant's further amended application did not provide particulars of grounds three to nine of the amended application filed on 11 October 2004.  On 4 November 2004 the Federal Magistrate dismissed the application under Rule 13.03 of the Federal Magistrates Court Rules 2001.  The Federal Magistrate did not deliver reasons for judgment. 

The application for the enlargement of time and leave to appeal and its disposition

7                     The application for leave to appeal states that the grounds for the application appear in the annexed affidavit.  That affidavit provides:

1.  I am the applicant.

2.  My application for judicial review was dismissed.

3.  My application for "Notice of Appeal" is late.

4.  Because I was not represented by solicitor.

5.  My application is very important for me.

6.  I will provide more in my submissions.

The draft notice of appeal provides that:

1.  The appellant appeals from the whole of judgment of the Federal Magistrate of the Federal Magistrates Court by the FM Driver given on 4 November 2004 at Sydney Registry.  File No SZ 2748 of 2003.

GROUNDS

2.  The Single judge of the Federal Court in his Honors Judgment delivered on the 4 November 2004 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

3.  The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).  Catchwords – Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1).

4.  The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm.  And also the present ruling government fail to protect politicians life, which is a worldwide concern today.  Honorable Trial judge did not take it into consideration.

5.  S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia.  Honorable trial judge did not consider this in favor of me.

6.  The applicant will face persecution if he returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge.

7.  Recent High Court judgement: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003)

8.  Recent Federal Court of Australia judgement: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003)

8                     In written submissions the respondent submitted the decision of the Federal Magistrate was not attended by sufficient doubt to warrant it being reconsidered by the Court.  In particular, the respondent noted, first, the applicant had failed to comply with an order of the Federal Magistrates Court made by consent on 13 May 2004 to file and serve a particularised amended application.  Secondly, on 11 October 2004 the applicant was given a further opportunity to file and serve a particularised amended application and on that day was put on notice that the respondent may ask the Federal Magistrates Court to make an order in chambers dismissing the application for failure to comply with a court order without further reference to the applicant.  Thirdly, on the face of the further application filed on 27 October 2004 the applicant failed to comply with the order made on 11 October 2004. 

9                     The respondent further submitted that no substantial injustice would result if leave were refused "supposing the judgment of the Federal Magistrate to be wrong".  The applicant's draft notice of appeal does not identify with any useful degree of particularity any error in the decision of the Federal Magistrate.  The Tribunal's reasons for decision do not disclose jurisdictional error.  The Tribunal considered the claims of the applicant, applied the relevant legal principles and made findings that were open to it.

10                  The applicant sought to challenge the decision of the Tribunal of 21 October 2003 at the hearing of the application.  In the course of the applicant's submissions, I sought submissions from the respondent's solicitor on the procedures adopted in the Federal Magistrates Court in dismissing the applicant's application:

HIS HONOUR:   I might ask the solicitor appearing for the Minister a couple of questions.  I only have a copy of the orders of the Federal Magistrate.  I gather that he dismissed the application for non compliance with certain directions.

MS RADICH:   That's correct, your Honour.  On 11 October 2004 the Federal Magistrate had a non compliance hearing.  At that stage he made the orders that I believe that you have, allowing the applicant further time to file an amended application.

HIS HONOUR:   Sorry, what was that date?

MS RADICH:   That was 11 October 2004.

HIS HONOUR:   How long did he give him?

MS RADICH:   The amended application giving particulars is actually to provide particulars of the amended application already filed by 1 November 2004 and on 27 October the applicant did file an amended application.  However, that application did not provide particulars of a ground of review. So we subsequently applied to the court to have the application dismissed in Chambers per his Honour's orders.

HIS HONOUR:   When you say dismissed in Chambers, there was no

hearing?

MS RADICH:   No, that's correct, your Honour.

HIS HONOUR:   How does an applicant have an opportunity to say whatever he or she wishes to say in opposition to the dismissal application?

MS RADICH:   They were the orders made by his Honour that the respondent may make such an application without further reference to the applicant.

HIS HONOUR:   Do you have a copy of those various orders.

MS RADICH:   Yes I do.

HIS HONOUR:   I didn't realise we in fact have them here.  Doesn't that procedure suffer from the vice that the applicant doesn't have an opportunity to argue whether in this case the application filed on 27 October 2004 is conformable with the order that was earlier made.

MS RADICH:   That appears to be the case your Honour.

HIS HONOUR:   Aren't there natural justice issues caught up in all of this?  I can well understand the need both in this Court and the Magistrates Court for efficient and expeditious ways of dealing with what ultimately prove to be unmeritorious claims based on what often are pro forma applications but I am wondering in this case whether the order that was earlier made enabling you to approach the Judge in Chambers does suffer from the vice I am speaking of.  There may be something in the Federal Magistrates rules that authorises this, I don't know.

11                  When asked why his application should be successful in this Court, the applicant made submissions concerning his problems in India.  After explaining to the applicant that it was not for this Court to determine whether he was a refugee, the applicant stated he did not have much to say and would abide by any order of this Court.  I indicated that it was likely the applicant's application for judicial review was doomed to fail because the Tribunal's decision was clearly open to it.  I had earlier put to the applicant that the Tribunal rejected the substance of his case on the basis that he had simply fabricated his story and the applicant accepted that was what the Tribunal had said.  However, I indicated some misgivings about the procedure adopted by the Federal Magistrate in dismissing his application for judicial review under s 39B of the Judiciary Act 1903 (Cth).  The respondent was given seven days to file any further submissions on that issue and the applicant was given a further seven days to provide any submissions in reply.  On 25 February 2005 the solicitors for the respondent provided further submissions concerning that issue.  The applicant did not provide any submissions in reply. 

12                  In the further submissions of 25 February 2005, the solicitors for the respondent submitted it was appropriate for the Federal Magistrate to dismiss the application without providing the applicant an opportunity to make further submissions on why the further amended application filed on 27 October 2004 complied with the orders made on 11 October 2004.  That was because the applicant had already been provided with the opportunity to comply with the order of 13 May 2004 requiring him to provide an amended application with particulars.  While an amended application was filed on 11 October 2004, that amended application did not provide particulars that had been ordered.  The further amended application filed on 27 October 2004 completely failed on its face to comply with the Federal Magistrate's orders of 11 October 2004.  No particulars were provided of grounds three to nine.  As a result, no submission could have been made by the applicant that could have persuaded the Federal Magistrate to do anything other than dismiss the application for non compliance. It would have been futile for the Court to give the applicant any further opportunity to respond.  Further, the applicant was on notice that non compliance with the orders made on 11 October 2004 might result in an order dismissing his application without further reference to the applicant. 

13                  Rule 13.03 of the Federal Magistrates Court Rules 2001 provides:

(1) This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court.

(2) Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order:

(a)  that the step be taken within a stated time; or

(b)  to end the proceeding or dismiss a response.

(3) The Court may make the order sought or another order that it considers appropriate.

14                  In this matter I would be prepared to extend time in which to apply for leave to appeal.  The delay was not extensive.  However the appeal has no prospects of success.  It was clearly open to the Federal Magistrate to make the order he did.  There had been no compliance with the earlier order of 11 October 2004.  No argument is available to the contrary.  Accordingly the preferable approach is probably to refuse to extend time: see NBDW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1526 and also Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 185 at [23]. 

15                  I should add that there is authority in this Court which suggests that it is inappropriate to grant leave to appeal against an order in circumstances where the order can be set aside in the Federal Magistrates Court (as is the case of an order made under r 13.03(2)(b)): see, for example, NAQB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 562.

16                  I refuse to enlarge time in which to apply for leave to appeal.  The applicant should pay the respondent's costs of the application.

Associate:

Dated:              8 April 2005

The Applicant appeared in person.