SZAXN v Minister for Immigration

[2003] FMCA 560

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXN v MINISTER FOR IMMIGRATION [2003] FMCA 560

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application claiming persecution – no reviewable error.

PRACTICE AND PROCEDURE – Summary dismissal of review application – non compliance with court orders – no reasonable cause of action  – reasonable inference that the Court’s process is being used purely for the purpose of delaying the applicant’s departure from Australia.

Federal Magistrates Court Rules 2001, Rule 13.10
Judiciary Act 1903, s.39B
Migration Act 1958, s.425

Kosi v The Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 340
NALE v the Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 366

Applicant: SZAXN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1274 of 2003

Delivered on: 26 November 2003

Delivered at: Sydney

Hearing date: 26 November 2003

Judgment of: Scarlett FM

REPRESENTATION

There was no appearance by or on behalf of the Applicant.

Solicitor for the Respondent: Ms Hanstein

Solicitors for the Respondent: Blake Dawson Waldron Lawyers

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the Respondent’s costs of and incidental to the proceedings in the sum of $ 2960.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1274 of 2003

SZAXN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. The matter before the court is a notice of motion brought by the respondent in respect of an application for review filed by the applicant on the 7^th July 2003. The respondent seeks an order through the notice of motion that the application should be dismissed pursuant to the provisions of Rule 13.10 of the Federal Magistrates Court Rules 2001. 

2. The applicant has not attended court today.  The matter was listed at this Court at 10.00am.  At 10.18am the matter came on for hearing and the applicant was called.  He did not appear, notwithstanding the fact that his name had been called three times outside the court.  No one has appeared for him or on his behalf.

3. I stood the matter down in order to make sure that the applicant had not been delayed in some way through some means beyond his control. 

   
   

   I interposed another matter and I did not come back to this matter until 10.52am the matter was called again and the applicant again did not appear.  The court has received no notice from the applicant either by telephone or fax as to why he has not appeared at Court today and the respondent, through the respondent's solicitors has not received any notice.  I proceeded to hear the notice of motion.

Notice of Motion Application

1. The application brought by the applicant is made under section 39B of the Judiciary Act 1903, asking the Court for a review of the decision of the Refugee Review Tribunal. That decision was made known to the applicant on the 17^th June this year.

2. The applicant had lodged an application for a Protection Visa on the 6^th  August 2002, but that application was refused by a delegate of the respondent.

3. On 6 September 2002, the applicant applied to the Tribunal for review of the delegate's decision. No details were given to the Refugee Review Tribunal other than those that had originally been given to the delegate of the respondent. 

4. On the 1^st April 2003 the Tribunal wrote to the applicant saying:

   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. 

5. The letter went on to inform the applicant that the matter was listed for hearing at 9.30am on Tuesday, 13^th May 2003.  A response to hearing invitation form was also sent and that was sent to the migration agent acting for the applicant. On the 28^th April 2003, the migration agent replied by means of a letter, in the letter the migration agent said:

   A response to hearing has been sent to us by the review applicant, we would wish to bring to your notice that the applicant had not completed the response to hearing form properly, and has not answered the question, "Do you want to come to a hearing?"  Both the cages have not been ticked.  We regret to state that we do not have a contact number of the applicant hence we are sending the form as it is.

6. The form that was sent made no indication as to whether the applicant wished to attend the hearing or not. The Tribunal then on the 29^th April wrote directly to the applicant saying:

   On 29 April the Tribunal received an uncompleted response to hearing information form from your authorised recipient.  Please see enclosed response to hearing invitation form signed by you.  Read every question and complete this form correctly. Inform the Tribunal as soon as possible if you will attend the hearing.  Your hearing date is the 13^th May 2003 at 9.30am.

7. This time the applicant did return the form, duly completed. The question, "Do you want to come to a hearing?" was answered by a tick in the box, so the applicant said:

   No I do not want to come to a hearing.  I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.

8. The hearing took place at the time specified.  The applicant did not appear.  The Tribunal considered the material before it, which was sparse. 

9. The Tribunal noted that the Tribunal had written to the applicant advising that it considered all the papers relating to his application but was unable to make a favourable decision on that information alone.

10. That of course complies with the obligation of the Tribunal set out in section 425 of the Migration Act 1958, it quite clearly spells out to the applicant that the material before the Tribunal is being considered but the Tribunal able to make a favourable decision on that material and the applicant is invited to attend or put further material for the Tribunal to consider whether the Tribunal can make an order favourable to the applicant. That did not happen.  The applicant did not attend and he did not submit any further material. 

11. The Tribunal considered the material that was put before the it, which related to a claim by the applicant that he feared harm from a person called Mr Narendra Modi who was a candidate for the Baratia Ganata party, a political party in India. As a result of this, the applicant claimed that he was detained by the police and interrogated, he said he was beaten severely by the police and that he was hospitalised, he was visited by some alleged henchmen of this Mr Modi who threatened that he should say nothing about an illegal timber business that Mr Modi was allegedly involved in, otherwise he would be killed.  Putting it at its highest, that is the case that the applicant put to the Tribunal.

12. The Tribunal on the basis of that sparse information was satisfied that the applicant's claim should not succeed.  The Tribunal held that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention.  That decision was communicated to the applicant. 

13. The applicant on the 7^th July lodged an application seeking relief as follows:

    (1)(a)  A declaration that the decision of the Refugee Review Tribunal notified to the appellant on 17 June 2003 is invalid, and has no effect in law.

    (b)An order that the aforesaid Tribunal reconsider the matter freshly constituted according to law and discretion of the court.

    (c)  Costs.

14. No particulars of any fraud or bad faith, and no particulars of any case was included in that application. The applicant has filed no further material. The respondent's solicitors wrote to the applicant on the 21^st  August 2003. They brought the matter squarely to the view of the applicant by saying:

    “We note that your application at the Court does not disclose a reasonable basis for seeking review of the Refugee Review Tribunal (RRT) decision.  This means that you have not told us what you consider is wrong with the RRT decision and you have only told us what you would like to happen as a result of your application.  Would you please inform us in writing what you consider is wrong with the RRT decision as soon as possible.

15. The applicant did not respond to that letter.  On the 28^th August 2003, the Court made directions relating to filing and serving any amended application and any evidence upon which the applicant proposed to rely on or before the 28^th September 2003.  Their further directions for filing notice of motion seeking summary dismissal and any affidavits in support on or before the 17^th October and the applicant has to file and serve any affidavits in response on or before the 7^th November 2003.  The applicant has done none of this.  The applicant has not attended today, and I am now asked by the respondent to make an order summarily dismissing the application. 

Applicable Law

1. Ms Hanstein has referred me to a decision of Federal Magistrate Driver in NALE v the Minister for Immigration and Multicultural and Indigenous Affairs (2003) FMCA 366. In that matter Federal Magistrate Driver considered the application of Rule 13.10, paragraph (a) and referred to him saying:

   “Having regard to the affidavits upon which the Minister relies and having regard to the Court Book and the principal application itself, it is clear to me that the application as framed is utterly hopeless”.

2. His Honour went on to refer to another decision which he had previously made of Kosi v The Minister for Immigrationand Multicultural and Indigenous Affairs reported in (2003) FMCA 340. In that matter Federal Magistrate Driver held that if that application were to proceed to a hearing it would necessarily fail.

3. I am asked by the respondent to follow those decisions and with respect to my brother Federal Magistrate Driver I find those decisions persuasive. The respondent sought to file an amended notice of motion to replace the original notice of motion. The amendments dealt with two areas. First, that the notice of motion should dismiss the application under the provisions of Rule 13.10 of the Federal Magistrates Court Rules 2001, rather than Order 20, Rule 2 of the Federal Court Rules.  I am satisfied that I should allow that amendment.

4. The notice of motion also sought to expand the grounds upon which the notice of motion should be made.  I was not satisfied that I should allow that, and in any event, having considered the matter on the original basis, namely that no reasonable basis for the application is disclosed.  It would seem that that is unnecessary.  The simple fact is that the applicant has at no time provided to the Court any information whatsoever as to why the orders sought by the applicant should be granted.  There is no basis whatsoever for the Court to grant the relief that the applicant seeks. 

5. The application is doomed to fail if it were to be heard on a substantive basis because there is no ground at all for it to succeed. It is my view that the provisions of Rule 13.10 exist to deal with matters such as this. Rule 13.10 which is headed Frivolous Proceedings says:

   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 in relation to the proceeding or claim for relief; (a) no reasonable course of action is disclosed.

6. No reasonable course of action is disclosed, in fact no cause of action reasonable or otherwise is disclosed.  I grant the relief sought in the notice of motion, the application is dismissed.

Costs

1. Costs in this jurisdiction normally follow the event, and this is clearly a matter where I should make an order for costs.  The respondent has been put to the trouble and expense of defending the application.  The respondent has also brought a notice of motion which I consider appropriate in the circumstances to deal with this matter at an early date, in order to clear the list so that matters of some substance can be heard as soon as possible.

2. The notice of motion procedure in dealing with an application that is clearly hopeless is appropriate way for a respondent to deal with an application.  It involves a saving of Court time and it also involves a saving of costs.  In appropriate cases, and the case before me was quite clearly appropriate, it is a procedure which should be followed.

3. I will order that the applicant is to pay the respondent's costs of the proceedings.  I will fix costs according to Schedule 1 of the Federal Magistrates' Court Rules, and the applicant is to pay the respondents costs in the sum of $2960. 

4. The application is dismissed. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  C. Soliman

Date:  3 December 2003