SZAUM v Minister for Immigration - [2004] FMCA 261

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUM v MINISTER FOR IMMIGRATION

[2004] FMCA 261

MIGRATION – Summary dismissal – whether no reasonable cause of action disclosed – application dismissed.

Migration Act 1958

Judiciary Act 1903

Narain v Parnell (1986) 9 FCR 479
Plaintiff S157/2002v Commonwealth of Australia [2003] HCA 2

Applicant:

SZAUM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1113 of 2003

Delivered on:

3 March 2004

Delivered at:

Sydney

Hearing date:

3 March 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the proceedings 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 $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1113 of 2003

SZAUM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is a notice of motion before the court in proceedings that were commenced by the applicant seeking review of a decision of the Refuge Review Tribunal handed down on 22 May 2003 refusing to grant him a Protection Visa. The applicant sought review of that decision by application filed in this court on 19 June 2003. The grounds relied on in that application were that the decision was incorrect and wrong in law on the grounds that (1) it exceeded the limits set out in the Commonwealth Constitution; (2) it involved section 78B of the Judiciary Act 1903 and (3) it was claimed to be “unconstitutional for the Commonwealth Government to enact legislation under the Migration Act to abolish the rights to have a poor decision checked by an independent umpire according to law”.
At a directions hearing held on 13 August 2003 attended by the applicant with the assistance of a Tongan interpreter, the applicant was ordered to file and serve any amended application and any affidavit material upon which he would rely on or before 26 September 2003. The matter was listed for final hearing on 17 August 2004. No further documents have been filed by the applicant.
On 3 February 2004 the respondent filed an application for summary dismissal of the proceedings pursuant to Rule 13.10 of the Federal Magistrates Court Rules as disclosing no reasonable cause of action. In support of that application the respondent relies on two affidavits sworn by Mr Allatt, the solicitor for the respondent, in relation to the failure of the applicant to file and serve any amended application and also attesting to service on the applicant of a copy of the application, affidavit in support and respondent’s written submissions.
I am satisfied that the applicant has been served with notice of the respondent’s application and has been given notice of the fact that these proceedings were listed for 2:15 on 27 February 2004. The applicant was not present at 2:15 this afternoon. The hearing did not commence until 3:00pm because of some difficulties in relation to obtaining an interpreter. The applicant did not appear prior to 3:00pm or at 3:00pm.
The respondent seeks that the court proceed to deal with the application in the absence of the applicant. Under Rule 13.03A of the Federal Magistrates Court Rules, if a party is absent the Court may do any of a number of things, including proceeding with the hearing either generally or in relation to any claim for relief or dismissing an application or a cross-claim. I consider that I have power under that provision to deal with the application presently before the court for summary dismissal of the proceedings. In the particular circumstances of this case, as outlined below, it is appropriate to do so.
The respondent relies on written submissions which assert that there is no reasonable cause of action disclosed in the applicant’s application. The power of the court to dismiss proceedings summarily is a power to be exercised only in clear cases. The court should be satisfied that the application is such that there is no real question to be tried, that the case is clearly untenable and cannot possibly succeed, or that it has no reasonable hope of success.
In this case it is necessary first to consider at the Tribunal decision and then the claims made by the applicant. The applicant is unrepresented and is not present today. Nonetheless, I have considered all of the material before me in determining whether or not there is a reasonable cause of action disclosed in his application. He has not taken the opportunity to file an amended application.
The applicant is a Tongan citizen who arrived in Australia on

12 November 1999 on a one month visa. On 21 May 2001 he applied for a protection visa. He made what the Tribunal described as ‘scant’ claims, stating that he did not like the political system in Tonga and the King's domination of it, and that if he were to criticise the system he might end up in prison. He provided no evidence of ever having criticised the King or the political system in Tonga, no evidence of any warnings or narrow escapes from persecution and no evidence of disseminating dissent in Tonga while in Australia.
He did not provide additional information when requested by the Department of Immigration (albeit that very little time was provided). He indicated to the Tribunal that he would submit a statement of claims when he made his application. He did not do so. He did not reply to the Tribunal's invitation to attend a hearing or attend the hearing offered.
The Tribunal indicated that ‘read generously’ the applicant's claims related to fear of persecution in Tonga for the Convention-related reason of political opinion. It expressed the view that the applicant was not really sincere or interested in addressing the scant claims he made in his protection visa application, based on his delay in applying for protection, his failure to provide more information and to respond to the Tribunal's hearing invitation.
The Tribunal also had regard to the fact that the applicant provided no evidence to the effect that he had ever protested, or that he would protest, nor evidence of his having thought about any means by which he might ever make his opinions known. The Tribunal also had regard to evidence before it that while publications of Tongan dissenters might be banned, that, in itself, would not necessarily lead to imprisonment. The Tribunal concluded on the evidence before it that there was no real chance of the applicant encountering any Convention related persecution in Tonga.
The grounds raised by the applicant in the application to this court are expressed very generally, and do not refer to the specifics of the Tribunal decision. The first ground is that the decision exceeded the limits set out in the Commonwealth Constitution. There is no clarification of what is meant by this claim, and there was nothing in the material before me to support a generalised claim of this nature.
As to the claim that the decision involved section 78B of the Judiciary Act 2003, it is clear that the mere assertion of such a claim is not sufficient. The section only operates when the circumstances it postulates are made to appear to the court, Narain v Parnell (1986) 9 FCR 479. There is nothing in the material before me to support such a claim. The assertion that it is ‘unconstitutional’ for the Commonwealth to enact legislation under the Migration Act to abolish the rights to have a poor decision checked by an independent umpire does not establish that this proceeding involves in any way a matter arising under the Constitution. In any event judicial review has not been abolished (see Plaintiff S157/2002v Commonwealth of Australia [2003] HCA 2).
The general complaint in the application that the decision was incorrect and wrong in law does not establish any ground for review. Indeed there is no jurisdictional error apparent on the material before me. Insofar as the applicant seeks merits review that is not available in this court and does not provide a ground for review.
This is a situation where the applicant's case as raised in his application for review is doomed to fail. There is nothing in the material before me to suggest that he would have any prospect of success on any ground raised or on any other basis. I am satisfied in the particular circumstances of this case that no reasonable cause of action is disclosed and that the proceeding should be dismissed under Rule 13.10(a) of the Federal Magistrates Court Rules.
The respondent also seeks that the applicant, having been unsuccessful, should pay costs. I consider it is appropriate that the applicant meet the respondent’s costs. In light of the nature of this and other similar proceedings, I consider that appropriate costs in this instance are in the sum of $2,000 and should be fixed in that amount.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 March 2004