SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 268

FEDERAL COURT OF AUSTRALIA

SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 268

SZBMN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 277 OF 2005

BLACK CJ, CONTI & ALLSOP JJ
22 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 277 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:	SZBMN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BLACK CJ,  CONTI &  ALLSOP JJ
DATE OF ORDER:	22 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant pay the respondent’s costs of the appeal, including of the application for leave to appeal

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 277 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:	SZBMN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BLACK CJ,  CONTI &  ALLSOP JJ
DATE:	22 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. This is an appeal, by leave, from an order of a Federal Magistrate summarily dismissing the appellant’s application for judicial review. It raises issues about the summary dismissal of an application apparently founded upon nothing more than bare assertions of jurisdictional error, in particular based on Rule 13.10(a) of the Federal Magistrates Court Rules.

2. The appellant, an Indian citizen of Muslim religious faith, sought a protection visa.  His claim was rejected by a delegate of the Minister.  The Refugee Review Tribunal (the “Tribunal”) affirmed the decision of the delegate.

3. The appellant sought judicial review of the decision of the Tribunal in the Federal Magistrates Court of Australia.  Seven grounds were stated in the application:

   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 were not observed.

   7.That there was no evidence or other material to justify the making of the decision.

4. Grounds 2, 3 and 7 were assertions of error which can be taken to be jurisdictional. Grounds 1, 4, 5 and 6 were assertions of error which might be jurisdictional, depending upon any elucidation. No particulars were provided in the application. Order 54B rule 2 of the Federal Court Rules, applicable by reason of Rule 1.05 of the Federal Magistrates Court Rules, made Form 56A mandatory for the application. This form did not require particulars to be provided unless fraud or bad faith was a ground of the application.

5. On 18 December 2003, a Registrar made the following orders by consent:

   1.The respondent to file and serve a bundle of relevant documents by 22 January 2004.

   2.The applicant to file and serve any amended application and any affidavit material upon which he intends to rely by 26 February 2004.

   3.The applicant to file and serve written submissions five clear working days prior to the hearing date.

   4.The respondent to file and serve written submissions two clear working days prior to the hearing date.

   5.The matter be listed for hearing at 11.30 am on 19/7/05 before

   6.The parties have liberty to apply on three days notice.

6. No order was made for particulars of any of the grounds for review. 

7. The appellant did not file any affidavit material in support of his application pursuant to Order 2.

8. On 20 January 2005 the respondent filed a notice of motion in the Federal Magistrates Court seeking two orders:

   1.The proceedings be dismissed pursuant to rule 13.10(a) as disclosing no reasonable cause of action.

   2.The Applicant pay the Respondent’s costs.

9. The affidavit in support by Mr Bockwinkel, a solicitor, stated that:

   the application filed on 24 September 2003 discloses no reasonable cause of action and on this basis [the Respondent] seeks the orders set out in the Notice of motion filed on behalf of the respondent.

10. The motion was returnable before the  Federal Magistrate on 11 February 2005.  The appellant appeared, unrepresented.  He sought leave to file submissions in opposition to the motion.  They were in the following terms:

    In the reference of Australian Government Solicitor’s letter dated 20^th January 2005, I would like to submit as below:-

    1.That, on 18^th December 2003 in the short minute of orders a hearing dated was given by the Honorable Magistrate for 19.07.05.

    2.That, I was on the pilot scheme for seeking free legal advice and accordingly I contacted the lawyer who was nominated for the free legal advice.  The lawyer discussed with me all the issues and finally advised that my case is not strong enough and he would not be able to help me any further and same time advised to hire another lawyer by saying that he might help in my case.

    3.That, I being under impression of final hearing date which was fixed for 19.07.05, I was trying to save some money so I can hire a lawyer and seek further advise.

    4.That, I will definitely seek further legal advise before the final hearing which is on 19.07.05 and file the submission five working days prior to the hearing date and in that submission a reasonable cause of action with an error of law will be clearly outlined.

    5.That, it is too early for the Australian Government Solicitor to seeking the summary dismissal of my case as I am in the process of saving money for seeking further legal advise in my matter for filing the submission before hearing date.

    In the interest of justice notice of motion filed by government solicitor may kindly be dismissed.
    [emphasis and errors in original]

11. The appellant made oral submissions before the Federal Magistrate, the substance of which was set out in the learned Federal Magistrate’s reasons:

    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.

12. This was the framework within which the Federal Magistrate came to examine the reasons of the Tribunal.  He dealt with the motion in [11] to [15] of his reasons as follows:

    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.

13. These reasons should be considered in the context of the reasons of the Tribunal.  The Tribunal carefully considered the claims of the appellant that he had been subjected to assaults and robbery during riots in Mumbai in 1992.  He claimed to fear harm from communal violence.  He also claimed to have been assaulted by the brother of his neighbour, who was said to have been involved in a Hindu fundamentalist group.  He claimed that when he reported this to police he was forced to witness a police officer shoot another man dead and he himself was threatened if he continued with his complaints.  He also claimed that there was a problem for Muslims in finding employment in India.  The Tribunal accepted the appellant’s evidence and so accepted that the past events occurred as he had recounted.

14. The approach of the Tribunal was otherwise accurately summarised in Mr Markus’ submission on appeal:

    …In respect of the applicant’s claims relating to communal violence, harassment and his witnessing of extra-judicial murder, the RRT concluded that, if the Appellant returned to his home in Mumbai, the chance that he would suffer harm amounting to persecution in the foreseeable future was remote.

    The RRT also accepted that Muslims may have more difficulty in obtaining employment in India, but was not satisfied that the Appellant would face such a difficulty in finding employment in India as would threaten his ability to subsist.

    In any event, independent of an alternative to the findings referred to above, the RRT identified certain areas of India where it considered sectarian violence was uncommon.  Given the Appellant’s educational qualifications, work experience and history of working in other countries, the RRT concluded that it would be reasonable for the Appellant to settle in those places.  Doing so, in the RRT’s view, would also avoid the possibility of further conflict with the Appellant’s Hindu neighbour and would lead to there being little risk of his being caught up in communal violence…

15. The appellant was represented on the appeal by Ms McManus, who appeared in response to a request under Order 80 of the Federal Court Rules. She argued that the approach of the learned Federal Magistrate was in error.  First, it was said that the affidavit of Mr Bockwinkel narrowed the application to one based only on the form of the application.  So limited, at least three of the grounds clearly expressed jurisdictional error.  Secondly, and related to the first ground, the appellant could reasonably have thought that the motion was so limited.  Thirdly, by reason of the date and timetable set for hearing, the bringing on and hearing of the motion, involved a denial of procedural fairness.  Fourthly, and related to the third ground, the emphasis by the Federal Magistrate on the failure to provide particulars, in circumstances where none had been ordered, was procedurally unfair.

16. These arguments were put with clarity and care by counsel for the appellant. We have concluded, however, that they must be rejected. First, the affidavit of Mr Bockwinkel really only restated the relevant rule. The issue raised by the motion was whether (reading Rule 13.10(a) of the Federal Magistrates Court Rules with Order 54B rule 5 of the Federal Court Rules made relevant by Rule 1.05(3)(b) and Part 2 of Schedule 3 of the Federal Magistrates Court Rules), a reasonable basis was disclosed for the application and the claims for relief. The Federal Magistrate was entitled to look beyond the form of the application to decide that question. Certainly, the application itself did assert three grounds capable, in their terms, of founding a conclusion of jurisdictional error. That, however, was not the end of the matter because it was permissible (and indeed necessary) in such an application to consider whether there was some reasonable basis for those bare assertions

17. What we have said implicitly deals with the second point argued but there is more to be said about it.  The appellant came to the hearing before the Federal Magistrate with written submissions.  He sought to illuminate the basis of his case.  He also sought to say that the motion was premature.  The submissions, and what was said by the appellant before the Federal Magistrate provided, together, a reasonable foundation for the Federal Magistrate to conclude that the appellant really had no basis, and knew of no basis, for the bare assertions made in the application, and this had been the position at the time the application was filed.  The appellant did not seek to establish, on appeal, that the contents of Mr Bockwinkel’s affidavit had led him to conclude that the argument on the motion was limited in the form and text of his application.  Indeed, his written submissions revealed an appreciation that there was a wider enquiry.

18. Thirdly, the setting of the hearing date and the timetable did not prevent the motion from being brought on.  It was filed and served and notice under the Rules was given.  The appellant had an opportunity, of which he availed himself, to make written and oral submissions.

19. Fourthly, the references by the Federal Magistrate to the lack of particularisation should not be taken out of context.  The appellant had sought to meet the motion by the submission that he filed and by what he said when he appeared before the Federal Magistrate.  Those submissions revealed an absence of any matter then known to the appellant to support the assertions in the application.  What was said in [13] of the Federal Magistrate’s reasons can be seen as a reason why the order, the grounds for which otherwise had been made out, should be made.

20. The learned Federal Magistrate understood the caution with which applications for summary disposal should be approached.  Upon reading the Tribunal’s decision he could find no apparent jurisdictional error of the nature referred to in the seven paragraphs of the application.  Nor can we.

21. The real issue is whether, in the principled application of Rule 13.10(a), the Federal Magistrate was entitled to deal with the matter as he did. In our view the Federal Magistrate was so entitled if the material before him was sufficient to allow him to conclude that the appellant had nothing further to place before him in support of his assertions. The Federal Magistrate was not obliged to give the appellant another five months to discover some support for his assertions. If the Federal Magistrate was satisfied, as he was (and as it was reasonable for him to be) that the appellant had no articulated ground to support the assertions, he was entitled to examine the Tribunal’s decision to assess whether there was anything before him which could nevertheless provide a reasonable foundation for the application.

22. The appellant had filed no affidavit evidence, as he was required to do under the orders that had been made if he desired to lead evidence.  The Federal Magistrate was thus entitled to proceed on the basis that there was no evidence to be led.  Counsel for the appellant correctly conceded that this was so.  Moreover, there was nothing in the submissions that the appellant made before the Federal Magistrate to suggest that there might be any evidence that he desired to lead, not withstanding no affidavit had been filed.  Given the absence of any evidence, and the terms of the submissions made to the Federal Magistrate, the appellant’s statements at the hearing before the Federal Magistrate, and the careful reasons given by the Tribunal for rejecting the appellant’s application for a visa, it was open to the Federal Magistrate to conclude that there was no reasonable basis to support the bare conclusory assertions in the application.

23. There was no denial of procedural fairness by the Federal Magistrate.  The appellant had notice of the motion.  There is no basis to conclude that he had been in any way misled about the terms of the notice of motion or by the nature of the motion.  Indeed, his submissions reflect an appreciation that what was being called for was some substantiation of his assertions in the application.

24. The appeal should be dismissed.  As to costs, the appellant should pay the respondent’s costs of the appeal, including of the application for leave to appeal.

25. We express our gratitude for the assistance provided by counsel on both sides.  In particular, the Court is grateful to Ms McManus for appearing pursuant to the Order 80 request and for putting her client’s case so clearly and concisely. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Dated:             22 December 2005

Counsel for the Appellant:	Ms L McManus
Counsel for the Respondent:	Mr A Markus (Slr)
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 November 2005
Date of Judgment:	22 December 2005