NBJE v Minister for Immigration - [2005] FMCA 565

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBJE v MINISTER FOR IMMIGRATION

[2005] FMCA 565

MIGRATION – Summary dismissal of application for judicial review as disclosing no reasonable cause of action.

Migration Act 1958

General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 236
Webster v Lampard (1993) 177 CLR 598
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83
Chung v The University of Sydney [2001] FMCA 94
Chung v The University of Sydney [2002] FCA 186
Minister for Immigration and Ethnic Affairs and Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte, Durairajasingham (2001) 68 ALR 407

Applicant:

NBJE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3757 of 2004

Judgment of:

Barnes FM

Hearing date:

29 April 2005

Delivered at:

Sydney

Delivered on:

29 April 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the application for review of a decision of the Refugee Review Tribunal be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.
That the applicant pay the respondent's costs fixed in the amount of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3757 of 2004

NBJE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is a notice of motion brought by the respondent seeking orders pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules that an application filed by the applicant seeking judicial review of a decision of the Refugee Review Tribunal be dismissed on the basis that no reasonable cause of action is disclosed.
The background to this application is that the applicant, who is a citizen of the Peoples Republic of China arrived in Australia on

23 December 2003. On 5 March 2004 he lodged an application for a protection visa. The application was refused and the applicant sought review by the Refugee Review Tribunal (the Tribunal).
On 21 September 2004 the Tribunal handed down a decision affirming the delegate's decision not to grant the applicant a protection visa. The applicant sought review of that decision by application filed in the Federal Court on 7 October 2004. That application contained four general and unparticularised grounds of review claiming that the Tribunal ignored part of the applicant's claims and that the failure to deal with part of the claims amounted to a failure to accord procedural fairness and a jurisdictional error.
On 26 October 2004 the matter was transferred to this court. The applicant was ordered to file an amended application giving complete particulars of each ground of review relied upon by 18 January 2005. The applicant filed what purported to be an amended application on

16 November 2004. However, the amended application commences by stating that the applicant believes the decision of the Tribunal is unfair then goes on to recite the following:
I. The fact:
1)     I am a citizen of the PR China. I arrived in Australia on

23 December 2003. I lodged an application for protection visa with DIMIA on 5 January 2004 and was refused on 30 January 2004. I then applied for review of that decision on 5 March 2004. The RRT confirmed the decision on 26 August 2004.
2)     I am a Falun Gong practitioner. I was introduced to Falun Gong through friends and the exercises made me stronger and healthier. After Falun Gong was declared ‘an anti‑government organisation’ some of my friends were put into jail. I left my country in other's passport. I am worried once I return to China because I will be facing persecution.
II Claim:
1)     The decision made by the RRT is unfair to me because I am sure that I will be persecuted by the Chinese Government once I return to China. The decision the RRT made should be based on a fair basis. They should take all the matters into consideration and give me a favourable decision.
On 14 January 2005 the respondent’s solicitors received by mail a further document from the applicant. Such document was also forwarded to this court. It is a handwritten document which repeats his claim in relation to a fear of persecution on the basis of a claimed association with Falun Gong. It does not otherwise address the Tribunal decision except insofar as it asks the court to consider the situation seriously. It states that all the documents which the applicant offered before were true. Nonetheless, I have taken this document into account in conjunction with the amended application.
On 1 March 2005 the respondent filed a notice of motion and an affidavit in support seeking summary dismissal of the matter. The respondent notified the applicant of the hearing of the notice of motion. The applicant did not appear. However because the orders made when the matter was transferred to this court may have caused some confusion (by referring to the possibility of a hearing being at John Madison Tower rather than at Queens Square) and because the “court” had not notified the applicant that the hearing of the notice of motion would be at Queens Square as contemplated by the earlier orders, out of an abundance of caution the hearing of the notice of motion was adjourned. The court notified the applicant of the adjournment and that the matter would be dealt with at Queens Square at a date, time and place specified. Despite this, there has been no appearance by the applicant either at the time the matter was called, or some fifteen minutes later.
The respondent seeks not simply that the matter be dismissed for non-appearance but rather, as was foreshadowed on the last occasion and notified to the applicant in the orders that were made at that time, that the court deal with the notice of motion and that the matter be dismissed as disclosing no reasonable cause of action. I consider in all the circumstances that it is appropriate to proceed in the manner sought by the respondent.
As indicated, the applicant claimed to fear persecution due to his association with the Falun Gong movement. The Tribunal did not accept that the applicant was a Falun Gong practitioner or that he was regarded as a leader. It did not accept that he was persecuted in the past as a Falun Gong practitioner, that he currently practised Falun Gong or that he had been detained for two years as claimed. It had regard to the nature of his claims, both in writing and in oral evidence which was given at a Tribunal hearing. It gave reasons for its conclusion that it was unable to be satisfied as to the identity of the applicant or, based on his lack of knowledge of Falun Gong and his evidence about the practice of Falun Gong, that he was a genuine or committed Falun Gong practitioner.
In rejecting the claim that the applicant had been imprisoned as claimed, the Tribunal had regard to significant discrepancies in his evidence and unreconciled inconsistencies as well as to a lack of credibility in the nature of aspects of the applicant's claims. For example, the passport which he presented was in fact issued at a time when he claimed to be in prison. In all the circumstances the Tribunal was not satisfied that the applicant had told the truth in relation to the essential elements of his claims.
With that background then, the application before the court is that the application for judicial review be dismissed as disclosing no reasonable cause of action. The court has power to order that proceedings be dismissed if no reasonable cause of action is disclosed and if it is established that the applicant's case is so clearly untenable that it cannot possibly succeed. The power should be exercised sparingly where it is clear that there is really no question to be tried: General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 236.
The question the court must decide is not whether the applicant would probably succeed in an action but whether the material before the court is such that the action should not be permitted to go trial in the ordinary way because it is apparent that it must fail: Webster v Lampard (1993) 177 CLR 598 and SZBWF v MIMIA [2004] FMCA 83. It must be plain and obvious that the grounds for the application are unarguable or that it is a hopeless case with no chance of success so that one can say without doubt on the whole of the material that there is no real question to be tried.
The applicant has not appeared today and has not filed any documentation in response to the notice of motion, albeit there was no obligation on him to do so. Nonetheless, in considering whether or not to exercise my discretion to summarily dismiss the application, I have taken into account the grounds in the amended application and in the original application as well as the document that was submitted to the court.
I have also considered whether an arguable case based on the material before me could be made out. Such an approach is warranted where an applicant is self-represented and I consider that it is appropriate to proceed on that basis even though in this instance the applicant is not present; see Chung v The University of Sydney [2001] FMCA 94 at [14] and Chung v The University of Sydney [2002] FCA 186.
The documents filed by the applicant do not raise any arguable question to be tried or ground of review. They are directed purely at the merits of the Tribunal decision. Insofar as the applicant seeks merits review, this court cannot review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The recitation of the applicant's claims, albeit put in terms that the Tribunal's failure to believe him constituted unfairness, does not give rise to any arguable ground of review. The Tribunal did not accept the applicant's claims because it could not be satisfied, for reasons which it gave which were open to it on the material before it, that the applicant was telling the truth. Such findings in relation to credibility are the function of the decision-maker and generally not susceptible to review by the court; McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte, Durairajasingham (2001) 68 ALR 407 at 67.
The Tribunal referred to internal inconsistencies and discrepancies in the applicant's evidence that had not been satisfactorily explained in relation to matters such as when he was detained and released; the extent to which he was sought by the authorities; whether or not he had siblings; whether or not he knew the exercises and was still practising Falun Gong (that being at odds with his claim that he in fact was able to practise Falun Gong while in prison). It also referred to the claims as to a different identity made by the applicant and the fact that, as I have indicated above, a passport in the claimed real identity was issued at a time when the applicant claimed that he was in prison.
Based on such material the Tribunal findings were open to it. There is nothing in the material before me to indicate that the applicant has an arguable case that there was a jurisdictional error either in the manner contended in the application or amended application, or based on the Tribunal decision. It is apparent that the Tribunal dealt with each element of the applicant's claims and there is nothing in the material before me to support any claim that there was any unfairness in the Tribunal's procedures. The applicant was invited to and attended a Tribunal hearing at which he had the opportunity to address the Tribunal's concerns. The only evidence of what occurred in the Tribunal hearing, that being the Tribunal reasons for decision, indicates that the applicant had the opportunity to deal with matters of concern before the Tribunal.
Having considered all the circumstances and all of the material before me, I am satisfied that no reasonable cause of action or basis for the application is disclosed in the present case. It is apparent that the applicant's application must fail. Accordingly, the application should be dismissed pursuant to Rule 13.10(a) as sought by the respondent.

RECORDED : NOT TRANSCRIBED

I consider that the amount of $3,750 which is sought is appropriate in light of the circumstances of this case.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: