FEDERAL COURT OF AUSTRALIA SZEMJ v Minister for Immigration & Citizenship [2007] FCA 1848 MIGRATION - judicial review – protection visa – application for judicial review of Tribunal decision – first application dismissed in Federal Court on remitter from High Court – second application for judicial review commenced in Federal Magistrates Court – application dismissed on non-appearance at summary disposition hearing – application to reinstate proceedings – delays – seven month delay from dismissal of remitted proceedings to institution of proceedings in Federal Magistrates Court – two year delay from dismissal of proceedings in Federal Magistrates Court to reinstatement application – application for leave to appeal from dismissal of reinstatement application – no merit in application for leave – no prospect of success on appeal – application for leave dismissed Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) s 39A SZEMJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1362 OF 2007 FRENCH J 30 OCTOBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1362 OF 2007 BETWEEN: SZEMJ Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FRENCH J DATE OF ORDER: 30 OCTOBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant to pay the firstrespondent's costs of the application fixed at $1,500. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1362 OF 2007 BETWEEN: SZEMJ Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FRENCH J DATE: 30 OCTOBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 The applicant for leave to appeal is a citizen of Fiji. She was born on 29 August 1972. She is married, but separated from her husband. She arrived in Australia on 30 June 2000. On 31 July 2000 she lodged an application with the Department of Immigration, Multicultural and Indigenous Affairs (the Department) for a protection visa. That application was refused by a delegate of the Minister on 12 October 2000. On 22 October 2000 she applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate's decision. The matter did not go to a hearing until 1 June 2001 and on 22 June 2001 the Tribunal affirmed the delegate's decision. 2 The applicant joined representative proceedings in the High Court. Her application was eventually remitted to the Federal Court and was dismissed on 20 February 2004. She made a new application to the Federal Magistrates Court in September 2004 for review of the Tribunal's decision. That application was summarily dismissed on 4 February 2005. She made unsuccessful applications to the Minister in 2005, 2006 and 2007 for the grant of a visa under s 417 of the Migration Act 1958 (Cth) (the Act). All were declined. She then applied to the Federal Magistrates Court on 2 March 2007 for an order setting aside the dismissal of her application in February 2005. That application was dismissed. The applicant now seeks leave to appeal against the decision of the Federal Magistrates Court. When the matter came on for hearing on 30 October 2007 and, after having given the applicant an opportunity to be heard, I dismissed her application. I now publish my full reasons. Factual and procedural background 3 The applicant's claims were summarised in the Tribunal's reasons for decision. It described her at the time as a 28 year old Indian woman from Nadi. In a statement which accompanied her application for a protection visa she said that she had arrived in Australia on a three month visitor visa and had intended to return to Fiji upon its expiry. The elected government of Fiji was overthrown by an armed rebellion on 19 May 2000. The applicant claimed, in her statement, that hostages who had been taken at the time of her application were still in custody of the terrorists. She claimed that the leader of the rebels had declared that his intention was to change the Constitution to ensure that ethnic Indians were permanently disenfranchised. A large number of Indian businesses had been burned and looted with a damage figure estimated at $30 million. The police and army who were mainly indigenous Fijians, were said to have been unwilling and unable to protect people of Indian origin. The applicant claimed that the homes of Indian Fijians had been broken into and families assaulted. She said there had been reports of Indian females being raped. She also claimed that the Great Council of Chiefs of Fiji had met and endorsed the anti-Indian demands of the terrorists. Subsequently, however, the Fiji military took over the administration and imposed martial law. She said that the Indian population particularly in the urban areas and Suva were fleeing their homes. 4 In a submission dated 25 May 2001 the applicant's advisors stated that she was a machinist and a supporter of the Fiji Labour Party. She claimed that on 20 May 2000 some indigenous Fijians came to her house and asked her to vacate it so they could live there. When she and her husband refused, they beat him. The following day she and her husband went to the police who told them to return home and they would come and take a statement. However this never eventuated. A few days later their house was stoned again. Again they reported it to the police but nothing happened. On 1 June 2000, according to the applicant, some Fijians started to break into their house and told them if they did not vacate it they would both be killed. They again reported the matter to the police, but again nothing happened. They then went and stayed at a friend's place until they left Fiji. 5 The claims that the house had been attacked had not been mentioned in the applicant's initial statement. She said that she had told her previous advisor of these things but he did not write them down. 6 The Tribunal was not satisfied about the applicant's claims that her house had been invaded on two occasions, that her husband had been beaten and that her house had been stoned. Had such frightening events really occurred, the Tribunal considered that the applicant would have insisted they be recorded in her initial application. Instead the statement with her application referred generally to events in Fiji. The Tribunal was confirmed in its view by the applicant's indication that she had intended to return to Fiji once things had settled down. 7 The Tribunal was satisfied that the situation in Fiji had settled down. The law and order situation had been secured following the arrest of George Speight who was the leader of the rebellion. The country information to which the Tribunal referred indicated that the risk to Indian Fijians was low and that it had mainly taken the form of threats and low level theft. The authorities had promised safety for all citizens and had sent extra troops and police to troubled areas. The Tribunal did accept that, particularly during the time of the coup, there was harassment of Indian Fijians in various areas as the information provided by the applicant's advisor had indicated and as was confirmed by the Department of Foreign Affairs and Trade. The Tribunal concluded that there was no real chance that the applicant would face persecution because of her ethnicity should she return to Fiji. 8 On 17 August 2001 the applicant joined the Lie class action in the High Court which involved a challenge to various decisions of the Tribunal based upon a failure of procedural fairness relating to the failure of the Department to transfer certain documents to the Tribunal which were relevant to the application. On 25 November 2002, Gaudron J ordered that the application be remitted to the Federal Court. Ultimately, the remitted application was dismissed by Emmett J on 20 February 2004. 9 Some seven months later, on 29 September 2004, the applicant filed an application in the Federal Magistrates Court under s 39B of the Judiciary Act 1903 (Cth) seeking writs of prohibition, certiorari and mandamus in relation to the Tribunal's decision. The grounds of the application were uninformatively framed to include breach of the rules of natural justice and procedural fairness, error of law, failure to have regard to relevant material, failure to observe procedures required to be observed, improper exercise of power and want of evidence or other material to justify the making of the decision. 10 The Minister filed a notice of objection to competency on 7 October 2004 on the basis that subs 477(1A) of the Act provided that an application to the Federal Magistrates Court under s 39B of the Judiciary Act and s 483 of the Act must be made within 28 days of the notification of the Tribunal decision. An amended application was filed on 3 December 2004. The grounds were materially changed. In the amended application it was claimed that the Tribunal fell into jurisdictional error when, having found that there was selective harassment of Indian Fijians at the hands of ethnic Fijians, he did not find that this constituted persecution for a Convention reason. It was also alleged that the applicant was denied the opportunity to explain why she believed that the harm which she apprehended arose as a result of her ethnicity. The Tribunal was also said to have failed to have had regard to a relevant consideration, namely constant and selective harassment. Further, the Tribunal was said to have used critical adverse information obtained after the delegate's decision which was neither provided to the applicant before the hearing nor put to the applicant during the hearing. Generalised grounds of misapplication of the relevant test and irrational or illogical reasoning and failure to give proper and adequate reasons were also raised. The Tribunal was also said to have erred in failing to consider all the claims and issues put forward by the applicant. 11 On 11 October 2004 consent orders were made in the Federal Magistrates Court requiring the Minister to file and serve a bundle of relevant documents (ie the Green Book) by 25 October 2004 and the applicant to file and serve any affidavit containing additional evidence relied upon by 15 November 2004. The Minister's application for summary dismissal was listed for hearing on 4 February 2005. Notice of that listing was sent by the Minister's solicitors to the applicant's solicitors on 15 December 2004. According to an affidavit sworn by the Minister's solicitor on 1 February 2005 the applicant's solicitors had not replied to their letter of 15 December 2004. The letter had not been returned as undeliverable. 12 On 4 February 2005 the application for summary dismissal, apparently pursuant to the objection to competency, came on for hearing before Nicholls FM. There was no appearance for the applicant. The application was dismissed. 13 On 2 March 2007 the applicant filed an order seeking to set aside the orders which had been made on 4 February 2005. She supported that application with an affidavit sworn the same date. She said in that affidavit, inter alia (at [4]): Previously I have in Federal Magistrate Court, but my solicitor withdraws that application and appeal to Minister Under S417. We were not aware of any judicial procedure; I believe that we had been denied natural justice. I also believe that there is lack of procedural fairness in my case. The procedure that was required to be observed under the Migration Act 1958, in connection with the making of the decision. [sic] 14 On 13 April 2007 Nicholls FM made orders in the following terms: 1. Leave is granted to the respondent to file by 20 April 2007 any further submissions on the issue of the credibility of the applicant's evidence and whether a request pursuant to s 417 of the Migration Act is a sufficient explanation for delay in the exercise of the Court's discretion pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001. 2. Leave is granted to the applicant to file and serve in response any written submissions on these issues by 27 April 2007. Written submissions were filed by the Minister on 20 April 2007 together with a chronology. 15 At the hearing before the learned magistrate a number of exhibits were received relating to the applicant's unsuccessful approaches to the Minister for the grant of a visa pursuant to s 417 of the Act. These comprised: 1. A letter dated 5 August 2005 from the applicant's solicitors to the Minister requesting intervention pursuant to s 417 of the Act. 2. A reply from the Minister's department dated 12 October 2006 advising that the Minister decided not to consider exercising the power under s 417 of the Act. 3. A letter from the applicant dated 31 October 2006 to the Minister again seeking the Minister's intervention pursuant to s 417 of the Act. 4. A response from the Minister's department which was undated but advised that the information provided did not come within ministerial guidelines for referral to the Minister for consideration. 5. A request by the applicant dated 10 January 2007 seeking intervention yet again pursuant to s 417 of the Act. 6. A response by the Minister's department dated 28 March 2007, again advising the unsuccessful outcome of the request. 16 The learned magistrate identified as the issues for consideration: 1. The circumstances which led to the applicant's non appearance at the hearing on 4 February 2005 and any explanation for that non appearance. 2. The utility of reinstating the original application. 3. Whether the relief sought should, in any event, be refused given the unexplained delay by the applicant. 17 The applicant gave evidence at the hearing, part of which related to the current political situation in Fiji. The learned magistrate referred to evidence in which the applicant explained that she had been assisted in making the application of 2 March 2007 by her uncle who wrote it out. There were certain matters contained in her own affidavit which she apparently could not understand. She told the Court that she had pursued judicial review of the Tribunal decision soon after the decision was given by commencing proceedings in the High Court. Following the ultimate dismissal of those proceedings in February 2004, on remitter to the Federal Court, she engaged another solicitor to make an application to the Federal Magistrates Court. She and her husband were assisted by her uncle in paying that solicitor to assist them. They maintained monthly contact with the solicitor. She then said that her solicitor had withdrawn her application to the Court and she knew "somewhere about" 4 February 2005 that she had missed the hearing. When she asked the solicitor about it he told her that her application had been withdrawn from the Court. She claimed that following this she and her uncle had taken all her papers and things and had gone to see another solicitor. 18 The learned Federal Magistrate noted that the applicant had confirmed that she took no action whatever in relation to the solicitor who had withdrawn her application without her authority. She was unable to explain the seven month delay between the dismissal in February 2004 of proceedings commenced in the High Court and the commencement of proceedings in the Federal Magistrates Court on 29 September 2004. 19 The applicant confirmed that the solicitor who acted for her in the Federal Magistrates Court did not tell her to seek ministerial intervention. However this was in conflict with what appeared in her affidavit. When this was pointed out she confirmed that the withdrawal of her case, which was action taken by her then solicitor, was distinct from the subsequent action taken to seek the Minister's intervention. 20 The learned magistrate did not accept the applicant's explanation for her failure to attend Court on 4 February 2005. Her evidence was that other than for a "monthly" inquiry she had left matters in the hands of her solicitor. Soon after the date of the dismissal she was told by her solicitor that her case had been "withdrawn". The learned magistrate noted that there was nothing on the Court file to show any withdrawal of her application by way of notice of discontinuance or other communication as required by the Rules of the Federal Magistrates Court. What was left was that neither the applicant nor her then solicitor appeared at the relevant hearing with the result that the application was dismissed. Despite her solicitor allegedly acting without her instruction and authority she made no complaint either to the Court or to the relevant authorities concerned with the conduct of solicitors. She appeared at the time to acquiesce with whatever action or inaction had been taken by the solicitor. She consulted other solicitors and sought to pursue ministerial intervention. She did not employ the services of those other solicitors to have her matter reinstated before the Federal Magistrates Court in a timely fashion. 21 The learned magistrate agreed with the submission of counsel for the Minister that the applicant's evidence that she did not know anything about the dismissal of the application or what to do to remedy her situation in February 2005 should not be accepted in the face of very clear evidence from her concerning her ability to both actively and repeatedly pursue previous court action and subsequently to pursue intervention by the Minister. He did not accept that the applicant had provided a satisfactory explanation for her failure to attend Court. 22 The learned magistrate then went into the basis upon which the applicant sought review of the Tribunal decision. This was done under the heading "Utility of Reinstatement". This section of his reasons for judgment was in substance a review of the merits of her judicial review application. The applicant had not been able to show any basis upon which the Tribunal's decision could be said to be affected by jurisdictional error. 23 Further, the learned magistrate said that even if he were to accept the applicant's explanation for her absence from Court on 4 February 2005, and even if he were able to discern on the material before the Court, some basis for her claim to the relief sought in the original application, he would still refuse to grant it having regard to her "unwarrantable and unexplained delay" in seeking judicial review in relation to the Tribunal's decision. Her explanation for the two year delay from the time of the dismissal of the application to seeking its reinstatement was that she had been pursuing repeated requests to the Minister to intervene pursuant to s 417 of the Act. She sought to reopen her case because she understood that there might have been changes in the law that would lead to her application being successful and that she would have a better chance of success. The learned magistrate treated two periods of delay as relevant to his discretion. The first was the initial seven month period between the cessation of the High Court proceedings and the commencement of the proceedings in the Federal Magistrates Court. The second was the two year delay between the cessation of proceedings in the Federal Magistrates Court and her attempt to revive those proceedings. Merits of the application for leave to appeal 24 Where an application is made for leave to appeal against an interlocutory decision which has the effect of a final disposition of the proceedings, the threshold for securing such leave may be low. In this case, however, I am satisfied that there is no merit at all in the application. The applicant has had the benefit of a careful consideration by the learned magistrate of the merits of her judicial review application in any event. The substantial delays involved in relation to the commencement of the proceedings in the Federal Magistrates Court and the institution of the reinstatement application were, as the learned magistrate found, not satisfactorily explained. 25 The applicant was unable to say anything at the hearing of the application for leave that would indicate any basis upon which leave should be granted. The application will therefore be dismissed. Conclusion 26 The application is dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 27 November 2007 The applicant appeared in person Counsel for the First Respondent: Mr R White Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 30 October 2007 Date of Order: 30 October 2007 Date of Publication of Reasons: 27 November 2007