SZFNK v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given by Federal Magistrate Lloyd-Jones. His Honour refused an application for intervention of the Federal Magistrates Court by way of constitutional writs in relation to a decision adverse to the appellant made by the Refugee Review Tribunal ('the Tribunal'). 2 The appellant had claimed to be a democrat, a supporter of the independence of Tibet and a Falun Gong adherent in Communist, authoritarian and imperialist China. He did not avail himself of the opportunity to attend to assist the Tribunal and contented himself with the scanty and undetailed claims made in his visa application. Unsurprisingly, the Tribunal felt that there was insufficient information before it to found a conclusion that the appellant was entitled to refugee status. 3 Before the Federal Magistrates Court the appellant claimed that the Tribunal had failed to consider particular aspects of his claims or his claims at all, had failed to give him adequate particulars of the independent information (although there was none), had failed to provide a rational foundation for its decision, and had failed to provide him with an adequate opportunity to respond to the substance of the information. The appellant filed no written submissions before the Federal Magistrate and, unrepresented, made no oral submissions in support of his application. Nevertheless, the learned Federal Magistrate burdened himself with some pages of detailed consideration of what might possibly have existed to found any of the generalised and, as counsel for the Minister describes them, formulaic claims that were asserted in the documentation before his Honour. Further, his Honour said (at [22]): 'As the applicant is self-represented, this places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney and Ors [2002] FCA 186. I am satisfied that none of the grounds identified in either the applicant's original application or his amended application can be sustained. To satisfy this obligation, I have read all of the material in the Court Book and reconsidered the Tribunal decision. It is not apparent that there are any other grounds of review that exist to suggest that the Tribunal made a jurisdictional error in its decision-making process.' 4 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 was a case involving a complaint of discrimination because of race and disability by a man of Korean origin who had suffered from a depression illness and anxiety disorder. Spender J (at [34]) noted that Driver FM had said: 'I accept that there is an obligation upon me to satisfy myself that there is no arguable case to be put forward by Mr Chung in these proceedings before I accede to the application to dismiss the proceedings, and that I should in that consideration not limit myself to the arguments put by Mr Chung but independently consider whether an arguable case based on the material could be made out.' However, Chung's case was before Driver FM on an application by the respondent to strike out the proceedings as hopeless, and his Honour was at pains to emphasise the high barriers to success for a respondent with such an application. There is no obligation on a court, that I am aware of, independently to consider for itself whether a self-represented litigant might, despite the inadequacies of presentation of his or her position, have a case for the court's intervention. A strike-out application may stand in a special condition where a self-represented applicant is involved, but on an ordinary hearing it is for an applicant, self-represented or not, to make out his or her case. 5 In refugee cases it has become common for members of this Court, and of the Federal Magistrates Court, to run their eye over the materials lest, when so much might be at stake, an unrepresented applicant might either fail altogether to see an obviously arguable ground for the Court's intervention or, as Mr Johnson aptly put it, by the scatter gun approach commonly employed, aim at everything but the right point. In so doing, members of both courts act from a degree of charity and concern that Australia should not unlawfully deal with an asylum seeker, but there is no obligation on the members of those courts, in my opinion, to do so. The present is an instance where the appellant passed up an opportunity, if he had anything truthful and additional to add to what he already put before the Tribunal, to do so. He further passed up the opportunity to profit from the legal advice which, in the charity of the Australian people, he had been given. 6 I am not critical of the learned Federal Magistrate for considering the matter with the extreme care with which he did. I would merely wish to lighten his load in future. There is no need in such a case to deal with more than the bare essentials, and I do not intend to engage in similar supererogation. After some coaxing to say anything at all that he might wish to say here, the appellant volunteered, correctly, that the learned Federal Magistrate had carefully examined his case. He simply asked that I would reconsider the matter all over again. 7 The learned Federal Magistrate was right for the reasons he gave. The appeal will be dismissed with costs, assessed in the sum of $3600. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.