SZBOD v Minister for Immigration
[2005] FMCA 63
•27 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBOD v MINISTER FOR IMMIGRATION | [2005] FMCA 63 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – no reasonable cause of action. |
Muin v Refugee Review Tribunal [2002] HCA 30
General Steel Industries v Commissioner for Railway (1964) 112 CLR 236
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83
NAAY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 46
| Applicant: | SZBOD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2047 of 2003 |
| Delivered on: | 27 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 27 January 2005 |
| 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
The application for judicial review is dismissed summarily pursuant to Rule 13.10A of the Federal Magistrates Court Rules.
The applicant pay the respondent Minister's costs fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2047 of 2003
| SZBOD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
These are proceedings in which the respondent seeks dismissal of proceedings that were initiated by the applicant seeking review of a decision of the Refugee Review Tribunal. On 17 September 2003 the Tribunal handed down a decision affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. On
2 October 2003 the applicant filed an application in this court seeking review of that decision. The application contained a number of unparticularised grounds. On 4 February 2004 at a directions hearing orders were made by consent, including an order that the applicant file and serve an amended application setting out in full the grounds relied on together with any affidavit material to be relied on by 5 April 2004 and file and serve points of claim and further affidavits in relation to the matter pleaded in ground 2 of the application which contended, without elaboration, that her case was identical with the High Court decision in Muin v Refugee Review Tribunal [2002] HCA 30.The applicant failed to comply. The matter came before Federal Magistrate Driver on 6 September 2004. By that stage the applicant had filed an amended application on 27 August 2004. It was ordered that the matter proceed on that basis and the respondent had liberty to seek summary dismissal. On 5 October 2004 an application was filed by the respondent seeking orders that the proceedings be dismissed pursuant to Rule 13.10A of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.
The background to these proceedings is that the applicant, who is a citizen of Bangladesh, claimed to fear persecution in essence because of her Ahmadiyya religion. In the Tribunal reasons for decision the Tribunal accepted some but not all of the applicant's claims, accepting that she was of the religion claimed but finding that contrary to her original application, as clarified in the Tribunal hearing she was not an active priest and that she had not practised her religion since arriving in Australia. On the basis of the applicant's lack of continuing commitment to the faith the Tribunal did not accept her claim that she had had a leadership position with 250 followers and found that she had greatly embellished her claims to enhance her claims for a protection visa.
The Tribunal accepted that she was attacked on one occasion but was not able to satisfy itself that the attack was by the group to whom she attributed responsibility (the Jamaat-I-Islami) or that the essential and significant reason for the attack was Convention-related in the absence of supporting evidence. On the basis of the applicant's claims the Tribunal was not able to satisfy itself that the essential or significant reason for any difficulties she may encounter in Bangladesh if she returned was Convention related. It had regard to her attainment of academic qualifications and independent country information which the Tribunal indicated it had put to the applicant about the freedom of religion in India. Nor did the Tribunal accept that the applicant received death threats in Australia as she had not reported them to the police or attempted to leave the country. Hence the Tribunal did not accept that the applicant faced a serous threat from mainstream religious fanatics and feared for her life under the BNP government or that the essential and significant reason for any difficulties in regard to her safety or the uncertainty she had about returning to Bangladesh was Convention related. Based on her claims and the independent country information it was not satisfied that she had a well-founded fear of harm for reason of her religion or for any other Convention reason.
The amended application filed by the applicant commences with an account of her attempts to contact the adviser provided under the pilot advice scheme and an explanation for her earlier failure to an amended application. This part of her amended application and her explanation in oral submissions today about difficulties in contacting the pilot scheme adviser do not constitute grounds or, indeed, any basis for not finding, if it was otherwise established, that the amended application discloses no reasonable cause of action. The court documents indicate that written advice was provided to the applicant on 7 February 2004 under the pilot advice scheme.
The grounds of the application are as follows.
(a) The Tribunal in its decision in breach of the rules of procedural fairness failed to take into account material directly relevant and adverse (sic) to my claim of refugee status without giving me notice of the material or any opportunity to address on it.
(b): The Tribunal during the hearing of the review of the decision of the delegate of the Minister was in breach of the rule of procedural fairness failed to put it to me such country information as the Tribunal proposed to rely upon in coming to a decision adverse to my case. Therefore, the Tribunal was in breach of section 418(3), section 424A(1) of the Migration Act 1958.
The amended application continues with a number of paragraphs addressing aspects of these grounds to which I shall return. The respondent seeks dismissal of these proceedings on the basis that the amended application discloses no reasonable cause of action.
An order summarily dismissing proceedings should only be made where there is no real question to be tried, where the claims are clearly untenable and cannot succeed: General Steel Industries v Commissioner for Railway (1964) 112 CLR 236 and see other cases cited in SZBWF v MIMIA [2004] FMCA 83. The power of the court to dismiss a proceeding summarily should be exercised only in a clear case. The court must decide whether the material before the court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. It must, in other words, be plainly and obviously unarguable or a hopeless case with no chance of success.
The applicant is unrepresented. I have considered all the material before me in determining whether the application should be dismissed summarily on the basis that no reasonable cause of action is disclosed. The first ground relied upon is expressed confusingly. It does not specify any material in relation to which notice was not given to the applicant. In other words, this ground has not been particularised as was required by the orders made on 4 February 2004. The Tribunal is not obliged to give notice of material it does not take into account. There is nothing to suggest that the Tribunal failed to take into account the applicant’s claims (if this is what is contended). No particular aspect of her claims is identified as not taken into account. It is apparent that the applicant attended the Tribunal hearing and the Tribunal reasons refer to her claims and documentary evidence provided by her. Insofar as the claim is intended to be a claim that the Tribunal failed to notify the applicant of material it took into account, the decision reveals that the Tribunal stated that in the hearing it put to the applicant independent information indicating that while the Constitution of Bangladesh established Islam as the state religion other religions were allowed and citizens were generally free to practise the religion of their choice. Independent evidence consistent with what was said to be put to the applicant appears in the Tribunal reasons for decision.
There is nothing in the material before me to raise a claim that there is any material directly relevant and adverse to the applicant's claim which was not put to her for comment. In particular, there is no reference in the Tribunal decision to any material personal to the applicant or otherwise directly relevant to her claim on which such a ground might be based, other than the material said to have been put to her. In these circumstances in the absence of the particulars which the applicant was required to provide I am satisfied that no reasonable cause of action is disclosed in ground (a) of the amended application.
Ground (b) combines a number of grounds, initially claiming that in the hearing the Tribunal failed to put to the applicant country information it proposed to rely on in coming to an adverse decision. Expressed in such general terms, what I have said in relation to ground (a) applies similarly to this aspect of ground (b). The applicant goes on to contend:
The Tribunal was in breach of section 418(3) and section 424A(1)
and purports to raise a ground based on the decision of the High Court in Muin on the basis of the Tribunal's treatment of the documents described as Part B in the delegate's reason for decision. However the amended application does not provide a proper basis for such a claim in the absence of any agreed statement of facts or other evidence. From the authorities which have followed Muin it is apparent that the onus rests on the applicant to make out each of the elements of the factual substratum in support of a claim of a denial of procedural fairness of the kind considered in Muin (see NAAY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 46 at [22] and following). As presented in the amended application the applicant's claims fall far short of this requirement. She has not filed any evidence in support of her claims as ordered. More generally, insofar as the applicant complains generally that the Tribunal's failure to put country information to her was a breach of section 424A(1), again there is no particularisation. Expressed in such general terms the ground must fail in light of the exception in s.424A(3)(a).
The broad assertions in the amended application that the Department did not comply with s.418(3) and that the Tribunal made no reference to or did not read the Part B documents do not give rise to an arguable ground of review on the material before the court. The general claim that the Tribunal failed to follow proper procedures and accord procedural fairness is unparticularised and there is nothing to support such a claim on the material before me. The claim that the Tribunal ‘failed to warn adverse information about documentary fraud or the use to which it was to be put’ is meaningless. There is no reference to such material in the reasons for decision. While ground (b) might be said to be elaborated upon in the sense that the basis for the claim is followed by statements of legal principles there is no particularisation or reference to the circumstances of the applicant and the particular Tribunal decision. On the material before me the amended application does not raise any arguable case or real question to be tried. There is no substance to any of the grounds for review advanced by the applicant in the amended application. In the particular circumstances of this case I accept that the respondent has met the high standard required for summary dismissal on this ground. It is apparent that the action must fail. In the circumstances I will dismiss the application pursuant to Rule 13.10A of the Federal Magistrates Court Rules. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
I am satisfied that costs should follow the event. The respondent assesses their costs on a party/party basis as $4000. There have been a number of appearances including the work associated with an appearance in relation to non-compliance by the time specified. However not all of the costs normally associated with a final hearing, including counsel's costs, have not been incurred in this instance. In all the circumstances I consider that an appropriate amount for the costs is the sum of $3,000.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 7 February 2005.
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