MZWVW v Minister for Immigration
[2005] FMCA 1156
•8 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWVW v MINISTER FOR IMMIGRATION | [2005] FMCA 1156 |
| MIGRATION – Judicial review of decision of Refugee Review Tribunal – protection visa – whether arguable case – application for summary dismissal – failure of Applicant to attend RRT hearing – no jurisdictional error. |
| Migration Act 1958, ss.424, 424A |
| Hassan v Hume &Anor [2003] FMCA 476 Z v MIMA (FCA unreported 11 December 1998) |
| Applicant: | MZWVW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 51 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Cheung |
| Solicitors for the Applicant: | David K Kin Cheung |
| Counsel for the Respondent: | Ms T. Veschetti |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application as amended be summarily dismissed.
The Applicant shall pay the Respondent's costs fixed in the sum of $4,200.00, including reserved costs, if any.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 51 of 2005
| MZWVW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application filed on 17 January 2005 the applicant seeks review of a decision of the Refugee Review Tribunal (the RRT) dated
14 December 2004. The RRT had affirmed a decision of a delegate of the Minister to refuse to grant to the applicant a protection visa.
The application currently before this court is an application by the respondent for summary dismissal of the application primarily on the ground that the application and/or the contentions relied upon by the applicant do not provide any or any proper basis where it could be concluded that there is an arguable case.
I apply the following passage from my decision in Hassan v Hume &Anor [2003] FMCA 476 where I stated at paragraph 24 the following:-
“24.The Court is conscious of the fact that summary dismissal is a matter which should be approached with caution and used sparingly. In particular I note the judgment of Barwick CJ in General Steel Industries at p.129 as follows:-
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129) 9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129) 10.
… Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
17. It is noted that that decision in Hassan was upheld on appeal (see Hassan v Hume [2004] FCA 886).
It is clear from those authorities that the power to dismiss an application summarily is a power which should be exercised with great caution and it is one which should be used sparingly. In matters of this kind the case must indeed be a very clear one to justify summary intervention to effectively prevent be an applicant from submitting the case for determination in the normal manner. It is noted in particular that there is significance both in terms of the principles to be applied and the consequences which may flow to an applicant in the event that the application was to be summarily dismissed. It is noted that the matter has been listed for final hearing on 27 October 2005.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
In this application the background facts are not in dispute. The applicant, who claims to be a citizen of Malaysia of Tamil Indian origin, arrived in Australia on 25 February 2004. On 8 April 2004 he lodged an application for a protection (class XA) visa with the department. On 26 May 2004 a delegate of the minister refused to grant the protection visa and the applicant then applied on 2 July 2004 to the RRT for review of that decision.
In its decision dated 14 December 2004 the RRT sets out under the heading ‘Claims and Evidence’ the details concerning this applicant's application and also sets out significantly for the purpose of this application the chronology of events, including reference to the invitation extended by the RRT to the applicant to attend a hearing. It is noted that the RRT had forwarded to the applicant a letter indicating that the application on the information before the RRT could not be considered in favour of the applicant. By letter dated 25 October 2004 the RRT invites the applicant to attend a hearing then scheduled for 2 December 2004. It is conceded by the representative of the respondent that that letter had been incorrectly addressed to a former address of the applicant, and I note from the court book that a change of address had indeed been provided by the applicant and received by the respondent on 5 October 2004, that is, almost three weeks prior to the date of the invitation. It is noted, however, that the invitation was also sent, according to the face of the document, to the applicant at the new address set out in the change of address.
In any event, the applicant had indeed filed what is described as a response to hearing invitation (court book 64). In that document the applicant indicates that he wished to attend the hearing and required an interpreter. It is common ground that the applicant did not attend the hearing on the scheduled date. It appears by correspondence from the RRT to the applicant dated 16 November 2004 that the scheduled date of 2 December 2004 was altered to 6 December 2004, and I am satisfied that notice was given of that altered hearing date. So much is clear from a file memorandum (court book page 67) indicating, as it does, that on 3 December 2004 an officer of the RRT received advice from the applicant that he would attend the scheduled hearing and would require a Tamil interpreter. I am satisfied that on that material the applicant had been properly invited to attend the RRT hearing, though I note in passing the hearing date was in fact 6 December 2004 and not 2 December 2004. Nevertheless, there does not seem to be any dispute in this instance that the applicant did not attend the hearing as rescheduled.
There is no material before this court which would provide any or any proper basis upon which the court could conclude that there was a reasonable ground for non-attendance before the RRT. Orders were made in this court of a procedural nature by a registrar on 2 March 2005. Those orders included that the applicant should file and serve an amended application containing proper particulars of the grounds relied upon, if any, by 15 April 2005, and, further, the applicant should file and serve a supplementary court book, if any, by 29 April 2005, together with contentions of fact and law to be filed on the same date.
The applicant did in fact provide an amended application which was filed on 18 April 2005, and for present purposes no issue is taken in relation to the late filing of that amended application given it was only three days out of time. Likewise, no issue is now taken in relation to the late filing and service of the applicant's contentions of fact and law, which I note were filed on 18 July 2005. Those facts and contentions are also accompanied by a further amended application filed the same day.
The matter was previously listed before the court at the request of the respondent on the basis of noncompliance with the orders, which presumably at least related to the late filing and service of the facts and contentions which, having regard to the orders made, should have been filed in April though were not filed until July. Not a great deal turns on the late filing of the material and for present purposes it is my view that it would be unfair to the applicant in the circumstances to dismiss the application for noncompliance of the procedural orders made by the registrar on 2 March 2005.
However, when the matter came before the court on 22 July 2005 the respondent indicated that there was a desire to make application for summary dismissal. The summary dismissal application effectively has been argued on the basis that there is no reasonable cause of action disclosed in relation to the claim. Put another way, the respondent now seeks to argue that on the material before the court there is no arguable case, and I am satisfied, applying the appropriate authorities, that there is a significantly high threshold to be overcome by the respondent in seeking to have the matter summarily dismissed in this manner. When the matter was before the court on 22 July 2005 I granted leave to the respondent to make an oral application for summary dismissal and otherwise dispensed with so much of the rules that would prevent the application being heard and determined this day.
There was a further issue in relation to costs which I do not need to deal with at this time.
In support of the application for summary dismissal, the respondent has now referred to what I would describe as the further amended application filed 18 July 2005 and has otherwise referred to the applicant's contentions of fact and law from which may be gleaned further grounds in support of the application. In addition, submissions have been made this day that the tribunal has failed to comply with what are described as the obligations under the Migration Act 1958 (the Act) and in particular ss. 424 and 424A.
In dealing with the amended application it is appropriate to note that the further amended application filed 18 July 2005 under the heading ‘Particulars’ sets out the following:-
“The Tribunal in upholding the decision of the said delegate had breached its imperative duties as a de novo forum of redress by summarily rubber stamping the delegate's decision without a fresh examination of relevant information. Although the Tribunal is not required to make the applicant’s case for him, the Tribunal has a duty to seek further explanation and information from the applicant if the Tribunal feels as in this case that the applicant had not satisfied the Tribunal that all of the statutory elements are made out. It is not enough for the Tribunal to merely say that ‘the applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so’. The Tribunal has a duty to seek clarification on specific aspects that it is not satisfied with, instead of a blanket rejection as unsatisfactory the applicant’s submissions. The Tribunal is right in saying that ‘A number of relevant questions are therefore left unanswered’ But the Tribunal has not asked the specific questions. If in doubt the Tribunal ought to have sought from the applicant further specific explanation and clarification before summarily making its decision. The applicant was not given that opportunity to explain properly. This falls within the ambit of a jurisdictional error of law, and whereupon the applicant was denied natural justice and/or procedural fairness”.
In the contentions of fact and law it is argued and reliance was placed upon a decision of Z v MIMA (FCA unreported 11 December 1998). It was submitted that in this matter there has been what is described as a failure to adhere to the principles of law as established by that case. The case establishes that general enforcement of a law of general application will not be enough to bring it within convention grounds. However, it would come within Convention reasons for prosecution under the relevant law, or the manner of enforcing the general law is selectively enforced or if the general law is enforced in a manner selectively based as in the present case if based on a person's race, religion and membership of a particular social group.
To understand that further contention it is appropriate to set out the background in this matter in some further detail, and for present purposes I rely upon the applicant's contentions of fact and law where under the heading ‘The Facts’ the following appears:
“The applicant, a Malaysian citizen of Tamil Indian origin, arrived in Australia and applied to the respondent for the grant of a protection visa on the grounds that he feared persecution in his native country Malaysia at the hands of Muslim militants, stemming from the prevalent underlying racial conflict between Muslim Malays and Tamil Indians in Malaysia. This fear of persecution involved a serious threat to his life. However, a delegate of the respondent decided to refuse the grant of a protection visa to the applicant. This decision by the delegate of the respondent not to grant the applicant the visa applied, was affirmed by the Refugee Review Tribunal (‘the Tribunal’). The applicant has now applied to the Federal Magistrates Court to review the decision of the Tribunal.”
It is appropriate that I should further make reference in this decision to the RRT decision. Under the heading ‘Claims and Evidence’ the RRT, as indicated earlier, refers to the chronology of events and the invitation extended by the RRT to the applicant to attend a hearing. It otherwise refers to the protection visa application which sets out the background information, some of which has been referred to earlier in this judgment. The RRT, after setting out the travel arrangements of the applicant, then recites verbatim the information attached to the application. Perhaps the most significant part of that attachment is the sentence which states as follows:
“He cannot return to Malaysia because he'll be persecuted because of his religion and ethnicity by agents uncontrolled by the state.”
In its decision the RRT then refers to country information, and I accept for the present purposes that that information falls within the exception of s.424A(3) of the Act. It is clear that that information referred to by the RRT highlights significant and perhaps ongoing difficulties in relations between Indians and Malays in Malaysia and otherwise sets out the background history of those difficulties. Under the heading ‘Findings and Reasons’ the RRT states the following:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo and Anor (1997) 191 CLR 559 at 596)”.
The RRT in its decision goes on to refer to issues which do not on the face of it appear to demonstrate any error concerning the concept of onus of proof and I accept applies relevantly authorities to support the proposition that the decision‑maker is not required to make the applicant's case for him or her, nor indeed is the RRT required to accept uncritically any or all the allegations made by an applicant. It is of significance that the RRT makes the following finding. It states:
“The Tribunal finds that the applicant has provided insufficient details of his claims to enable it to establish the relevant facts. Although the applicant claims that there was an incident in his workplace that caused division between the employees, he provides no detail about how and why this occurred. He has not explained who was involved and if there were any other incidents prior to this incident. He has not provided any detail about the subsequent incidents. For example, there is no evidence to indicate whether the same group of Malays were involved in the incident in December 2003 and January 2004. There is no evidence to indicate that the applicant was targeted during the incident in January 2004 or if it was connected to the previous incidents. He has not provided any detail about what caused the divisions at his workplace and if there are any other reasons for his resignation. While the applicant has claimed that the authorities will not provide him with protection, he has not explained in any detail why such protection might be denied to him if he required it apart from stating that he had previously lodged complaints and the police took no action. Had the applicant attended the hearing, the Tribunal would have asked him about the nature of the complaints he lodged with the police and what action he expected them to take. The applicant has also not explained why he believes that he would be targeted by Muslim extremists if he returned to Malaysia. He provided no detail about when and why Muslim militants have been to his house in search of him or if he has reported the matter to the police. The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention.”
It is appropriate in my view to set out that extract from the RRT decision in order to understand the process it followed. It is submitted by the respondent that the RRT has complied with the requirements of the act to invite the applicant to attend the hearing and that in the circumstances there is no breach of the rules of procedural fairness or natural justice. Reference is made to the decision of B41 of 2003; in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30
(2 February 2004). Further reference is made to the decision of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 (2005) FCAFC 73. It is submitted that in circumstances such as the current application where the applicant did not attend the hearing, there is no further obligation of the RRT to then seek further information from either the applicant or other sources pursuant to s.424A of the Act.The applicant's representative has argued that in fact the RRT has denied procedural fairness to the applicant by proceeding to make the adverse decision and failing to in fact seek further information or clarification from the applicant and/or has otherwise denied the applicant procedural fairness by relying upon the information then available to the RRT. To the extent that that other information included country information as indicated earlier in this judgment, I am satisfied that information falls within the exception of s.424A(3). Otherwise in my view the authorities to which I have referred raised by the respondent in support of the submissions made that the RRT has complied with the requirements of the Act should be applied in the present case.
I am satisfied from the chronology of events referred to earlier in this judgment, including the correspondence, that the applicant had been given a reasonable opportunity to attend the hearing and for reasons yet unexplained did not so attend. In my view, there is no further obligation as a matter of law under the Act on the tribunal to either make the case for the applicant or to further request the applicant to comment on other matters then before the RRT. It is not obliged in my view to effectively send out a questionnaire to the applicant raising questions of a kind set out in the extract referred to earlier in this judgment. It may of course do so if it chooses in certain cases, but I accept, applying the authorities to which I have been referred by the respondent, that is, B41/2003 and the Minister v VSAF, that there is indeed no obligation as a matter of law to go further in the present case. Hence, it seems to me that in the present case, the procedure having been adopted correctly by the RRT, that the decision it made was a decision reasonably open to it free of jurisdictional error.
The more difficult question in this instance is whether or not on my analysis of the reasoning of the RRT and having regard to the submissions made for and on behalf of both parties this is a case where it could be properly concluded that the court should summarily dismiss the application having regard to the authorities to which I referred earlier in this judgment. In my view, in circumstances of this kind where an invitation has been extended properly to the applicant who has then failed to attend the hearing on the rescheduled date without explanation and where on the face of the material I am unable to discern either in the amended application or the contentions of fact and law anything other than an attempt to re‑agitate the facts and am unable to determine any basis upon which this court could properly conclude there has been jurisdictional error. This is, in fact, a clear case of a kind required, applying the authorities of summary dismissal, where the court should accede to the application by the respondent and where the application as amended should be summarily dismissed.
In relation to costs I will add "including reserved costs, if any". I had made an order in relation to whether or not the respondent's costs be paid by the applicant or the applicant's solicitor personally on 22 July 2005. Having heard the applicant's representative and having considered the matter in some further detail, it is my view that it is not appropriate in this instance to make any further order as to costs other than the costs include the reserved costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 August 2005
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