SZBMN v Minister for Immigration - [2005] FMCA 116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBMN v MINISTER FOR IMMIGRATION

[2005] FMCA 116

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of review application as disclosing no reasonable cause of action.

Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)

Applicant:

SZBMN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1972 of 2003

Delivered on:

11 February 2005

Delivered at:

Sydney

Hearing date:

11 February 2005

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Mr M Allatt
Australian Government Solicitor

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1972 of 2003

SZBMN

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a motion by the Minister of which notice was given on 20 January 2005 calling for the dismissal of an application filed on 24 September 2003. The application seeks the review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was made on 11 August 2003 and affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant, who is from India, filed an application for a protection visa with the Minister's Department and the application was refused by a delegate. As I have noted, the RRT affirmed that decision.
The applicant attended a hearing before the RRT and the decision and reasons for the RRT decision appearing from page 80 of the court book discloses what appears to have been a fairly comprehensive discussion between the applicant and the presiding member. The presiding member had before her country information relating to India and the applicant's claims of persecution which might have been characterised as religious persecution, possibly with some political component. Essentially, the applicant claimed to fear harm arising out of communal violence.
The presiding member accepted that the applicant is a national of India and a Muslim. She was impressed with the applicant as a witness and found him to be entirely credible. It appears from my reading of the decision of the RRT that all of the factual claims made by the applicant were accepted by the RRT. However, the presiding member was unable to accept that any of the events related by the applicant gave rise to a well-founded fear of persecution. It did not appear that the applicant himself had suffered serious harm and the events that concerned him had taken place some years before the matter came before the RRT. The presiding member stated on pages 98 and 99 of the court book:
While I accept that the applicant is concerned about being harmed in communal violence, this has happened to the applicant on only one occasion in the past. In my view, the chance that in the reasonably foreseeable future the applicant will again be involved in violence motivated by religious differences and seriously harmed as a result is remote.
The presiding member concluded that the applicant did not have a well‑founded fear of persecution for a Convention reason.
The Minister's motion seeks the summary dismissal of the application for judicial review pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the basis that it discloses no reasonable cause of action. The application filed on 24 September 2003 sets out seven grounds. These are:
(1)That the decision involved an error of law, whether or not the error appears on the record of the decision.
(2)That a breach of the rules of natural justice occurred in connection with the making of the decision.
(3)That the applicant was denied procedural fairness in connection with the making of the decision.
(4)That the Tribunal member refused to accept that the applicant has a well-founded fear of persecution on Convention reasons.
(5)That the Tribunal decision was unjust and was made without taking into account the full gravity of the applicant's circumstances and the consequences of the claim.
(6)That procedures that were required by law to be observed in connection with the making of a decision were not observed.
(7)That there was no evidence or other material to justify the making of the decision.
These are grounds which are commonly made in applications before the Court to review RRT decisions and they are unfortunately seldom particularised. In this case no particulars were provided. In the absence of particulars, the grounds of review are meaningless.
These proceedings came before a registrar on 18 December 2003. Orders were made by consent on that day. Order 2 gave the applicant the opportunity to file and serve any amended application and any affidavit material upon which he intended to rely by 26 February 2004. That was almost 12 months ago. Nothing further was filed or served on behalf of the applicant prior to the court hearing today.
I gave leave for the applicant to file in court today written submissions in opposition to the Minister's motion. The applicant states in those written submissions that he has participated in the pilot advice scheme for applicants seeking a review of a decision of the RRT. The applicant states that the lawyer provided him with advice, which he said occurred approximately 12 months ago, discussed with him all of the issues and finally advised that his case was not strong enough and that he would not be able to help the applicant any further. The applicant states that the pilot adviser suggested that the applicant hire another lawyer saying that some other lawyer might be able to help in the case. The applicant states that he was trying to save money so that he could hire a lawyer and seek further advice.
In his oral submissions the applicant stated that, while he could not point to any legal error in the decision of the RRT, if he was given more time with the assistance of a lawyer he might be able to do so.
Mr Allatt, for the Minister, relies upon the affidavit of Anton Bockwinkel providing relevant background information relating to the proceedings. Mr Allatt submits that the application for judicial review discloses no reasonable cause of action and that accordingly the Minister's motion should be granted.
As I have already noted, the dismissal of an application summarily as disclosing no reasonable cause of action is provided for by rule 13.10(a) of the Federal Magistrates Court Rules. Pursuant to Order 54B of the Federal Court Rules applied by the Federal Magistrates Court Rules, the expression "no reasonable cause of action" is to be interpreted as "no reasonable basis for the cause of action".
The power to dismiss an application summarily should be exercised with great caution. In circumstances where an applicant is self‑represented, as is the case in these proceedings, I have previously held that the Court should independently consider whether an arguable case based upon the material could be made out by the applicant. If it appears that an arguable case exists or could be made out the application should not be summarily dismissed. If, on the other hand, no arguable case is advanced and none is apparent the Court may, pursuant to rule 13.10(a), summarily dismiss the application.
As I have already noted, the application before the Court is devoid of particulars. No affidavit material has been filed which might assist in clothing the application with some meaning. While grounds are asserted, none, in my view, have any chance whatsoever of success. On my reading of the decision of the RRT the presiding member has given a careful and thorough consideration to the applicant's claims. Nothing of any concern to me arises from the decision and reasons of the RRT or any other of the material in the book of relevant documents. I find that the application is doomed to fail.
In my view, the applicant has had ample time to put his application into a proper form warranting a final hearing. He has failed to do so and I am not minded to give him the further time that he seeks.
I will dismiss the application, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.
In relation to costs, Mr Allatt seeks an order for costs fixed in the sum of $2,000. The applicant did not wish to make any submissions on costs. I am satisfied that when assessed on a party and party basis $2,000 has been properly and reasonably expended on behalf of the Minister in these proceedings to this point.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 February 2005