MZXIY v Minister for Immigration
[2006] FMCA 1481
•19 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXIY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1481 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – summary dismissal – whether arguable case – failure to attend Tribunal hearing – Applicant’s failure to understand significance of completing response indicating that the Applicant did not wish to attend hearing – failure of applicant to contact interpreting service. |
| Federal Magistrates Court Rules 2001, rr.13.10, 44.12, 44.15, 44.12(2) Federal Magistrates Court Act 1999, s.17A Migration Act 1958, ss.425, 425(2)(b) |
| MZXEF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 507 MZXES v Minister for Immigration & Anor [2006] FMCA 316 MZXIW v Minister for Immigration & Anor [2006] FMCA 1482 |
| Applicant: | MZXIY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 442 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 28 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms K. Miller |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application as amended be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 442 of 2006
| MZXIY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In an application filed 30 March 2006, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 27 February 2006. The Tribunal decision had affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
The First Respondent has sought summary dismissal of the application on the grounds that it discloses no reasonable cause of action and/or it is frivolous or vexatious and/or the application does not raise an arguable case.
The application is made by the First Respondent pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (the Rules). In the alternative, an order was sought pursuant to rr.44.12 and 44.15 of the Rules. Rule 44.12 provides that the court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. It is noted, however, that r.44.12(2) makes it clear that a dismissal of that kind is "interlocutory". Hence, in my view, it is preferable to consider the application for summary dismissal under r.13.10, which arguably may be regarded as a final decision (see MZXEF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 507 at [18]).
It is noted that in considering summary dismissal, it is appropriate to take into account r.13.10 which provides as follows:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
It is also appropriate to note that the court is bound by s.17A of the Federal Magistrates Court Act 1999. I refer to and apply a decision of this court in MZXES v Minister for Immigration & Anor [2006] FMCA 316 as follows:
“10. I note and accept that the Court is now bound by s.17A of the Federal Magistrates Court 1999 (“the Act”) and that it is not necessary in an application of this kind for the Court to determine that the application is hopeless or bound to fail for it to have no reasonable prospect of success (see section 17A(3) of the Act).
11. That section does not effectively diminish the responsibility the Court undoubtedly has in considering summary dismissal, having regard to the well known authority of Dixon J, as he then was, in Dey v Victorian Railways Commissioner (1949) 78 CLR 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.”
12. In this case, although I do not have to consider whether the case is hopeless or bound to fail, I would if necessary have no trouble making that finding. At the very least, it is not difficult on the material before me to determine that in this case the application has no reasonable prospect of success, applying the authority to which I referred, noting the significant onus upon the Court when considering summary dismissal, but in this case I have no doubt that this could properly be described as an abuse of process, frivolous or vexatious.”
The hearing of this matter occurred over two days. It was heard consecutively with an application by the Applicant's mother namely, application MZXIW v Minister for Immigration & Anor [2006] FMCA 1482. Both Applicants were assisted by a Bulgarian interpreter and both were self-represented. The facts and circumstances in both cases are almost identical, and accordingly, as a matter of fairness and convenience to the parties, I heard the applications consecutively.
It should also be noted, however, that over the hearing days I permitted Applicant MZXIY to assist his mother and permitted both parties to rely on matters raised by them in support of their own applications, that is, I was prepared to accept that submissions made by both Applicants could be adopted and used in each application without undue technicality. I permitted this course to be followed, without any opposition from counsel for the First Respondent, who appropriately agreed that this was a course which allowed both Applicants the benefit of endeavouring to address the relevant issues.
The reason why the hearings occurred over a two-day period is that on the first hearing, after dealing with the submissions, I considered it appropriate to adjourn the hearing to enable the First Respondent to file and serve a further affidavit exhibiting other documents to which reference will be made later in this judgment. I did not regard it as necessary to require either Applicant to produce further affidavit material or give evidence on oath for reasons which will become apparent.
The Background
The Applicant is a citizen of Bulgaria who, along with his mother (Applicant MZXIW), arrived in Australia on 6 October 2005. On 10 October 2005, the Applicant applied for a protection visa. Before arriving in Australia, the Applicant and his mother had unsuccessfully sought protection in Finland, Iceland, Sweden and France. On 29 November 2005, a delegate of the First Respondent refused to grant the protection visa to the Applicant.
On 5 December 2005, the Applicant applied to the Tribunal for review of the delegate's decision.
On 4 January 2006, the Tribunal invited the Applicant to attend a hearing. That letter is exhibited to an affidavit of Kathryn Elizabeth Miller sworn 5 July 2006. Omitting formal parts, the letter provides:
“Hearing of the Tribunal
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.”
It will be noted from that letter that reference is made to enclosures namely, "Response to Hearing Invitation" form, "What is a Hearing?" brochure and “Multilingual Advice”. Annexed to the affidavit was a completed copy of the "Response to Hearing Invitation" where the Applicant, in response to the question, "DO YOU WANT TO COME TO A HEARING?" marked the box "NO." Also on that form, the Applicant had inserted the name and address of an authorised recipient who, it is noted, purports to be from an organisation named "ASYLUM SEEKER RESOURCE CENTRE."
The affidavit of Ms Miller sworn 5 July 2006 did not, however, provide the further enclosures namely, the "What is a Hearing?" brochure and multi-lingual advice. The Applicant indicated that he did not fully understand and appreciate the significance of indicating he did not want to come to a hearing and otherwise was unable to recall whether he received multilingual advice in the Bulgarian language. It was for that reason that I adjourned the proceedings to enable a further affidavit to be filed and served, exhibiting the relevant documents.
That occurred in an affidavit sworn by Ms Miller on 28 July 2006 which relevantly included the brochure entitled, "What is a Hearing?" dated May 2005, in English.
Relevantly and significantly, the “Multilingual Advice” annexed to the later affidavit of Ms Miller includes in the Bulgarian language, verified by the interpreter at this hearing to be an accurate translation of the following paragraph:
“This letter is important and requires your urgent attention. If you do not understand this letter please call the Translating and Interpreting Service (TIS) on 131 450 so they can help you to contact the Tribunal.”
The Tribunal Decision
The Tribunal in its decision noted the Applicant's claim that he feared persecution because of his sexuality, his ethnicity and because his great grandfather was a member of the police force of the Communist government in the 1940s. The Tribunal rejected the Applicant's claims that he was homosexual, a gypsy, of Turkish origin and that his great grandfather was a member or official of the Community Party or a police officer during the communist era in Bulgaria.
It is clear that in rejecting the Applicant's claims, the Tribunal considered, albeit in the absence of the Applicant, those claims which had been presented to the Tribunal in some detail in the application for the protection visa. Not surprisingly, the Tribunal alluded to certain questions which it may have asked the Applicant, including questions concerning his great grandfather and what had happened to his great grandfather after the fall of the Communist regime. Relevantly, the Tribunal states in relation to this issue the following:
“I would also have asked the applicant what, if anything, had happened to his great grandfather after the fall of the Communist regime. Based on the limited evidence before me, including the lack of information regarding the applicant's great grandfather and the nature of this man's alleged involvement in the Communist Party, I am not satisfied that the applicant's great grandfather had ever been a member or official of the Community Party or had ever been a police officer during the Communist era. I therefore find that the applicant's great grandfather had never been a member or official of the Communist Party and had never been a police officer during the Communist era.”
Similar reservations were expressed in relation to other claims made by the Applicant and the Tribunal again referred to questions it may have asked the Applicant had he attended the hearing.
The First Respondent's Submissions
The First Respondent submitted the application should be summarily dismissed. It was noted that in the application before the court, no particulars were given in relation to the grounds relied upon for judicial review. Instead, the grounds set out, it was submitted, and I accept, appear to be general grounds which may be raised in a wide range of applications where judicial review is sought. It is noted that the Applicant was given the opportunity to provide an amended application which indeed was filed on 29 June 2006 pursuant to orders made by the court on 24 May 2006. It was submitted by the First Respondent that the amended application does not state any grounds for review.
So much is clear from the amended application where the space for the grounds of the application have been left blank.
The First Respondent submitted that the Applicant effectively seeks to challenge factual findings made by the Tribunal and is therefore impermissibly seeking merits review. In fairness, it should be noted that annexed to the amended application is a statutory declaration of the Applicant which, it is noted, includes the following statement:
“The Refugee Review Tribunal has made an unacceptable mistake by not accepting as a truth that I am a subject of discrimination in Bulgaria due to being a homosexual, without having proof.
It also does not accept the grounds of my Romany origin and being of Communist descendent, which creates a real threat to my life in Bulgaria, well known at present as one of the most dangerous countries in the world.
But I believe that Australia is a democratic country and the Federal Magistrates Court will revise and rectify the mistakes allowed by the Refugee Review Tribunal. (sic)”
The First Respondent submitted that there is no legal error identified by the Applicant of a kind which would constitute jurisdictional error, hence the application does not disclose a reasonable cause of action and/or is frivolous or vexatious.
During the course of the hearing, when the issue was raised concerning the non-attendance of the Applicant at the Tribunal hearing, the First Respondent submitted that the Tribunal has discharged its obligations under the Migration Act 1958 (the Migration Act).In particular, has issued an invitation to the Applicant to appear pursuant to its obligations under s.425 of the Migration Act.
It was submitted the Tribunal was entitled to proceed to a hearing given that the Applicant had consented to the Tribunal deciding the review without the Applicant appearing before it (see s.425(2)(b)). Reference was made to the Tribunal letter dated 4 January 2006 set out earlier in this judgment. Particular emphasis was placed upon the first paragraph of that letter where the Tribunal relevantly states:
“The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”
Although submissions were made referring to the question of whether "actual notice" has to be given, it seemed through the course of submissions that there was no dispute at all that this Applicant had received the relevant letter and had completed the "Response to Hearing Invitation" in the manner described earlier in this judgment.
It was submitted that in the circumstances where the Applicant has been alerted to an interpreting service, the combination of that notice and the contents of the relevant document, including the "What is a Hearing?" brochure, means that the Applicant ought to have arranged for a translation of the letter in order to fully understand and appreciate his rights should he decide not to attend a hearing and, moreover, understand the consequences of a failure to attend a hearing given the clear words of the letter from the Tribunal where it states it is "unable to make a decision in your favour on this information alone".
The Applicant's Submissions
It will be evident that the First Respondent, both in oral submissions and written submissions, endeavoured to anticipate the arguments which may be advanced for or on behalf of the Applicant given that the Applicant was self-represented. The summary of submissions of the First Respondent ultimately seek to address various issues raised during the course of the hearing.
As indicated, the Applicant, though acknowledging receipt of the invitation from the Tribunal and completing the "Response to Hearing Invitation", further claimed that he did not fully understand and appreciate the consequences of his decision to mark the box indicating that he did not wish to attend the hearing. He did not appear to seek a translation of the document, though he did not deny receiving the advice directing him to use the interpreter service and noting that the letter was indeed important and required urgent attention.
The Applicant was critical of the content of the document which had been interpreted for him by the interpreter at court in the sense that it did not clearly, in his submission, set out the consequences of failure to attend a Tribunal hearing namely, that the Tribunal may proceed in his absence to make an adverse finding.
Reasoning
In my view, the First Respondent's submissions in relation to this application are correct in that the application, and indeed the amended application, does not provide any or any adequate particulars to support any grounds justifying judicial review. There is no material before the court which would satisfy me that there has been jurisdictional error on the part of the Tribunal, and applying the relevant authorities to which reference was made earlier, it is appropriate that the application be summarily dismissed pursuant to r.13.10 of the Rules. I am satisfied that there is no reasonable prospect of the Applicant succeeding and/or the application is frivolous or vexatious.
In this case, the court was concerned initially about the hearing notice and whether or not the Applicant was alerted to the interpreting facilities in the "Multilingual Advice". I am satisfied that the multilingual advice included the Bulgarian language which clearly alerts the recipient of the letter to the importance and urgency of the letter and provides a telephone number where interpreting assistance could be made available.
I can see no further action which the First Respondent or office of the Department could take to bring to the attention of a non-English speaking Applicant the importance of the letter and the significance of the hearing. If the Applicant had chosen to arrange interpretation of the letter, then I am further satisfied that the letter itself very clearly stated that the Tribunal is unable to make a favourable finding on the information it then had available. If translated, then at the very least the first sentence of the letter would have alerted the Applicant to the distinct possibility that an adverse decision would be made in the absence of further material and/or the attendance of the Applicant at a hearing.
I am satisfied that in the circumstances the Tribunal has appropriately discharged its duties and obligations under the relevant provisions of the Migration Act and that otherwise there has been no denial of procedural fairness as there has been no breach of those relevant statutory provisions.
Accordingly, it follows that the application as amended should be summarily dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 19 October 2006
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