SZBBL v Minister for Immigration
[2004] FMCA 185
•15 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBBL v MINISTER FOR IMMIGRATION | [2004] FMCA 185 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Fiji – motion by Minister for summary dismissal of the application as disclosing no cause of action and for failure to comply with court orders – applicant partially complying with court order – application doomed to fail – motion granted. |
Federal Magistrates Court Rules 2001(Cth)
Migration Act 1958 (Cth), s.425
Applicant A135/2002 v Minister for Immigration [2003] FCA 708
Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677
Chung v University of Sydney [2001] FMCA 94
Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Kosi v Minister for Immigration [2003] FMCA 340
Lee v Minister for Immigration [2002] FMCA 279
M172 v Minister for Immigration & Anor [2004] FMCA 23
Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194
SZBWF v Minister for Immigration [2004] FMCA 83
Webster v Lampard (1993) 177 CLR 598
Xie v Immigration Department [1999] FCA 365 at [20] per Carr J
Yo Han Chung v University of Sydney [2002] FCA 186
| Applicant: | SZBBL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1487 of 2003 |
| Delivered on: | 15 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 15 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr R White Sparke Helmore |
ORDERS
The Court directs that the hearing date of 8 December 2004 be vacated.
The application is dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth), upon the basis that the application for judicial review fails to disclose a reasonable cause of action.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,847.50.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1487 of 2003
| SZBBL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me a notice of motion filed on 12 January 2004 on behalf of the respondent Minister in this matter seeking that an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) filed on 1 August 2003 be dismissed on two grounds; namely, that pursuant to Part 13, rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) the applicant has failed to comply with an order of the Court and pursuant to Part 13, rule 13.10(a) of the Federal Magistrates Court Rules, the application fails to disclose a reasonable cause of action. Secondly, the notice of motion seeks that the applicant pay the respondent's costs and that the Court make any other order that it sees fit. The notice of motion is supported by an affidavit of Rebecca Kate Roberts made on 6 January 2004 and filed on 12 January 2004. That affidavit was read for the purposes of today's proceedings. The respondent Minister has also presented written submissions, a list of authorities and a chronology in support of the notice of motion.
The relevant background facts appear in paragraphs 4-9 of the respondent's written submissions. I adopt those paragraphs for the purposes of today's judgment:
The relevant background to this matter is contained in the [following] chronology:
Background
Applicant born in Fiji 8 February 1982
Applicant arrived in Australia 5 November 2000
DIMIA
Application for protection visa lodged 25 July 2002
Delegate’s decision 1 0 September 2002
RRT
Application for review lodged 4 October 2002
Applicant invited to hearing 1 May 2003
Applicant declined hearing invitation 17 June 2003
RRT decision handed down 22 July 2003
Federal Magistrates Court
Application for judicial review lodged 1 August 2003
Directions hearing 1 October 2003
Amended application due 26 November 2003
Respondent’s notice of motion filed and served 12 January 2004
The applicant’s claims
The applicant claimed to fear persecution from ethnic Fijians because she was of Indian descent. She claimed that she was robbed and attacked and was unable to access police protection (court book, pages 26.5-26.8). She claimed that following the 2000 coup led by George Speight, she feared for her life and was forced into hiding (court book, page 26.3). She also claimed to fear persecution by supporters of George Speight because of her activities as a social worker.
On 1 May 2003, the RRT invited the applicant to attend an oral hearing in accordance with s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) (court book, pages 39-40). As the applicant subsequently declined that invitation (court book, page 41), she was not entitled to appear before the RRT [1].
[1] ss.425(2)(b) and (3) of the Migration Act
The RRT’s Findings
The RRT noted that the applicant’s statement left “much to be desired in terms of clarity and detail” (court book, page 57.7). The RRT expressed concerns that the claims advanced by the applicant may not relate to her because, although the applicant was 20 years old, she referred to herself as an “old woman” (court book, page 58.7). Without further information, the RRT could not be satisfied that the events claimed by the applicant actually occurred or that her fears of persecution were well-founded (court book, page 58.7).
The RRT accepted the independent evidence detailing the “widespread terrorisation” of Indo Fijians during and after the coup (court book, pages 57.9 and 58.1). However, it noted that George Speight had been tried and sentenced for his role in the coup and the general lawlessness that followed the coup had ceased (court book, page 58.2). The RRT accepted that there was harassment of Indo Fijians by ethnic Fijians, but found that this occurred in an occasional and random manner (court book, page 58.3). Furthermore, the RRT was not satisfied that Indo Fijians were denied their basic rights or that persecution or mistreatment of them was permitted or condoned by the security authorities or the Fijian government (court book, page 58.8).
The RRT was satisfied that even if the applicant were to face harm from private individuals on the basis of her ethnicity, adequate State protection was available to her (court book, page 58.9).
The respondent asserts that on 1 October 2003 at a directions hearing before a registrar of the Court, Registrar Kavallaris ordered by consent that the applicant file and serve an amended and fully particularised application, together with an affidavit in support and any evidence upon which she proposes to rely on or before 26 November 2003.
The need for such an order is plain in that the original application filed on 1 August 2003 simply and broadly states that the applicant is not satisfied with the decision made by the RRT. An application framed in those terms does nothing to indicate any possible jurisdictional error in the decision of the RRT. Obviously, something more was required in order to enlighten the Court and the respondent Minister as to what jurisdictional error was alleged and what the factual basis of the alleged jurisdictional error was.
In fact, unbeknown to the Minister and those advising her, an amended application and an affidavit in support were filed on 4 November 2003. It appears that they were not served on the Minister's legal advisers. I note that the amended application and supporting affidavit were filed in the applicant's real name and it appears that an incorrect file reference was also given. It appears that someone in the court registry has corrected the errors, probably at a later stage, and the documents have found their way on to the court file. In the circumstances, it is understandable that the amended application and supporting affidavit have not come to the attention of the Minister's legal advisers. I find that there has been partial compliance with Registrar Kavallaris' order for an amended application and supporting evidence to be filed and served. An amended application and an affidavit have been filed. However, they have not been served. In that respect, the order has not been complied with.
The amended application continues to assert, generally, that the applicant is not satisfied with the decision made by the RRT. However, now, reasons for that dissatisfaction are provided. Those reasons are, first, that the applicant says that she did not attend any hearing which was held by the RRT because the solicitor - who I understand to be a migration agent - was acting in her case and informed her that there was no need for her to go to the hearing. Secondly, the applicant says that she was not aware of any hearing, which left her wondering what was going on with her case. She did not understand what her migration agent was doing in relation to her case. Thirdly, the applicant asks for a fair chance to present her case to the RRT on the basis that she does not consider that she has had a fair opportunity to date.
In her affidavits, the applicant reiterates these complaints. She states that she did not attend the RRT hearing because her immigration agent told her that she did not need to. The applicant states that she was not aware of any hearing and she states that she is dissatisfied with the performance of her migration agent.
The fact that the applicant has partially complied with Registrar Kavallaris' order leads me to the view that I should not dismiss the application pursuant to rule 13.03 of the Federal Magistrates Court Rules for failure to comply with an order of the Court. However, the question remains whether the application should be dismissed summarily on the basis that it does not disclose a reasonable cause of action.
This aspect of the matter is dealt with in Mr White's written submissions, prepared on behalf of the respondent Minister, at paragraphs 13 through to 20 of those written submissions. Those submissions were prepared before Mr White and others advising the Minister had the opportunity to see the amended application and supporting affidavit filed by the applicant. Nevertheless, I agree with and adopt in general those written submissions for the purposes of this judgment:
Part 4, rules 4.01 and 4.02 of the Federal Magistrates Court Rules relevantly provide that an application to the Court must state precisely and briefly the orders sought and the basis on which the orders are sought. Rule 4.05(1) provides that an applicant must file an affidavit in support of an application, whether seeking final, interim or procedural orders.
Part 13, rule 13.10(a) of the Federal Magistrates Court Rules deals with the dismissal of a proceeding or claim for relief if that proceeding or claim discloses no reasonable cause of action.
The power to strike out or dismiss an application on the basis that there is no reasonable cause of action disclosed should only be exercised where it is inevitable that the proceeding will fail[2] and should be exercised with exceptional caution, especially where the ultimate outcome depends on the resolution of disputed facts.[3]
An order for summary dismissal should only be made where the claims are clearly untenable and cannot succeed[4] or where it is clear that there is really no question to be tried,[5] that the grounds for the application are unarguable[6] or it is a hopeless case with no chance of success[7].
In circumstances where an applicant is self-represented, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant[8].
The application before the Court does not plead any grounds. It merely states that the applicant is not satisfied with the decision made by the RRT. It contains no particulars of any alleged jurisdictional error. Further, it does not raise any arguable case or any question to be tried. Consequently, the respondent has no case to answer.
In the absence of an affidavit accompanying the application, any amended application, any material facts being disclosed in the application itself and any evidence in support of the application, no reasonable cause of action is disclosed.
Moreover, having particular regard to the applicant’s failure to attend a hearing before the RRT, the RRT’s approach and findings reveal no error, let alone a jurisdictional error. Accordingly, the principal application is hopeless and is bound to fail.
[2] See Webster v Lampard (1993) 177 CLR 598 at [611], per Mason CJ, Deane and Dawson JJ
[3] See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at [129]-[130], per Barwick CJ
[4] See Lee v Minister for Immigration [2002] FMCA 279 at [24] per Hartnett FM; Applicant A135/2002 v Minister for Immigration [2003] FCA 708 (9 July 2003) per Finn J at [3]-[6]; Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677 at [1] per Selway J, and; Xie v Immigration Department [1999] FCA 365 at [20] per Carr J
[5] Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at [99]
[6] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194
[7]SZBWF v Minister for Immigration [2004] FMCA 83 per Barnes FM at [25]
[8] Chung v University of Sydney [2001] FMCA 94 at [14] per FM Driver; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186. See also: Kosi v Minister for Immigration [2003] FMCA 340 (8 August 2003) per FM Driver, where immigration proceedings were summarily dismissed on the basis that no reasonable cause of action was disclosed
The only issue in my mind has been whether the issue raised by the applicant, namely, that she was unaware of the RRT hearing and was misled by her migration agent as to whether she needed to attend the hearing is an issue which should trouble the Court at a final hearing. I note that the court book, at page 41, contains a copy of the hearing invitation form sent to the applicant. The box has been ticked next to the words "No, I do not want to come to a hearing" and there is a signature at the bottom which appears to be similar to the signature of the applicant on page 23 of the court book where the applicant signed her protection visa application. The applicant denied before me that she was aware that there was going to be a hearing and she denied that she had signed the form appearing at page 41. If the migration agent signed her name on her behalf without any authority that would be a very serious matter warranting further investigation by the Migration Agent's Registration Authority. If, on the other hand, the applicant received the form and signed it herself she would have been aware that there was to be a hearing before the RRT. I find that that is the more likely circumstance based upon the similarity of the signatures appearing on page 41 and page 23 of the court book.
However, it remains a possibility that the applicant was misled by her migration agent as to the need for her to attend a hearing before the RRT. She says she was. She says her migration agent did not keep her informed about what was going on and that she was dissatisfied with his performance and because of his poor performance was denied a fair hearing by the RRT.
It is apparent from the decision of the RRT that the RRT would have been assisted by the applicant's presence. The RRT was left with a single written claim made by the applicant which the RRT did not find persuasive. The RRT had real doubt about the credibility of the applicant's claims and that matter could have usefully been explored if the applicant had attended a hearing. However, the RRT also found that the situation in Fiji at the time of the RRT hearing did not support a well founded fear of persecution in any event.
The issue of whether proceedings in a migration tribunal are rendered procedurally unfair by reason of some fault on the part of a migration agent which prevents an applicant enjoying the full benefit of a hearing before the tribunal was considered by the Chief Federal Magistrate in the case of M172 v Minister for Immigration and Anor [2004] FMCA 23. The Chief Federal Magistrate considered the relevant authorities comprehensively and concluded firmly that default on the part of a migration agent could not support a claim of jurisdictional error on the part of a review tribunal. In my view, that issue has now clearly and conclusively been dealt with in this Court. No other arguable jurisdictional error is apparent to me on the record of the RRT decision.
In the circumstances, I would certainly follow the decision of the Chief Federal Magistrate and the application as currently framed would be doomed to fail. It would have no prospect of success at all. It therefore satisfies the high test required for summary dismissal as disclosing no reasonable cause of action. The applicant has the opportunity to pursue a complaint against her migration agent before the Migration Agents Registration Authority should she wish to do so. However, this application in this Court should not be permitted to go any further.
I will grant the second order set out in the notice of motion and dismiss the application pursuant to Part 13, rule 13.10(a) of the Federal Magistrates Court Rules upon the basis that the application for judicial review fails to disclose a reasonable cause of action.
I will also order that the applicant pay the respondent's costs. I will apply the Federal Magistrates Court scale. I will order that the applicant pay the respondent's costs and disbursements of and incidental to this matter being the lump sum fee for a stage 2 proceeding of $1,135 plus 150 per cent of the daily hearing fee of $685.
I am reminded by Mr White that because this decision is being made at the interlocutory stage of the proceeding the normal appeal period does not apply. I have informed the applicant that she only has seven days from today in order to seek leave from the Federal Court to file an appeal.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 March 2004
71