SZBOQ v Minister for Immigration
[2004] FMCA 370
•28 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBOQ & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 370 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – whether no reasonable cause of action. |
Judiciary Act 1903
Federal Magistrates Act 1999
General Steel Industries v The Commissioner for Railways New South Wales (1964) 112 CLR 125
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83
Narain v Parnell (1986) 9 FCR 479
Applicants NAGM and Ors v Minister for Immigration & Multicultural Affairs [2002] FCAFC 396
SZAWO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 432
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
| Applicant: | SZBOQ & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ2067 of 2003 |
| Delivered on: | 28 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 28 May 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Applicants’ application be dismissed.
That the Applicants pay the Respondent's costs fixed in the amount of $3,000.
That the application by the respondent that Mr George Fonua pay the respondent's costs be adjourned for hearing before me at 2:15pm on Friday, 2 July 2004
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2067 of 2003
| SZBOQ & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The respondent seeks summary dismissal of an application by the applicants under section 39B of the Judiciary Act 1903. The applicants (a mother and daughter from Tonga) filed an application in this Court on 3 October 2003 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) that was made on 8 September 2003 refusing to grant them protection visas. The respondent filed an application on 10 May 2004 seeking that the application of the applicants be dismissed pursuant to the jurisdiction conferred by sections 14 and/or 15 of the Federal Magistrates Act 1999 under Rule 13.10 of the Federal Magistrates Court Rules on the basis that that no reasonable course of action was disclosed in relation to the proceeding or claim for relief and/or that the proceeding or claim was frivolous or vexatious and/or an abuse of the process of the Court. An alternative ground is that the application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules on the basis that the applicant is in default of orders made by a Registrar of the Court on 5 February 2004 in that she failed to file and serve any amended application by 11 March 2004. In the alternative the respondent seeks that the application be dismissed for want to prosecution.
I heard submissions in relation to the claim that no reasonable course of action is disclosed. I am satisfied for the reasons that I shall give that this ground is established and the application should be dismissed on that basis. It has therefore not been necessary to hear submissions in relation to, or to determine, the alternative grounds for dismissal.
The application filed by the applicants on 3 October 2003 claimed that the decision by the Tribunal should be referred to the respondent for reconsideration according to law. The grounds of the application are as follows.
1.The decision by the RRT involved section 78B of the Judiciary Act 1903.
2.The application is to challenge the decision under section 39B of the judiciary Act 1903.
3.The decision was wrong and incorrect according to law.
At a directions hearing held on 5 February 2004 attended by the applicant mother with the assistance of an interpreter, she was ordered to file and serve any amended application and any evidence upon which she proposed to rely on or by 11 March 2004. No further documents have been filed by the applicants.
The respondent relies on an affidavit sworn by Mr Reynolds, the solicitor for the respondent, on 7 May 2004 and filed on 10 May 2004, and submissions made today. The respondent submits that the applicants’ application discloses no reasonable cause of action.
The power of the court to dismiss proceedings summarily is a power to be exercised only in clear cases. The court should be satisfied that the application is such that there is no real question to be tried, that the case is clearly untenable and cannot possibly succeed, or has no reasonable hope of success (see General Steel Industries v Commissioner for Railways New South Wales (1964) 112 CLR 125, and other cases cited in SZBWF v MIMIA [2004] FMCA 83).
The grounds in the applicants’ application are not particularised. No amended application or other evidence has been filed by the applicants, and the applicant mother made no submissions today in relation to the grounds or as to whether the application disclosed any reasonable cause of action. However, as the applicants are unrepresented I have considered not only the grounds raised in the application but also all the material before me, in considering whether the application should be dismissed summarily on the basis that no reasonable cause of action is disclosed.
The claim that the decision should be referred to the respondent for reconsideration according to law is a statement of the relief sought by the applicants and does not establish a ground for review of the Tribunal decision. The first ground relied on, that the decision involved section 78B of the Judiciary Act 1903, does not disclose a reasonable cause of action. There is no basis in the application or apparent in the material before me such as to attract the operation of section 78B of the Judiciary Act. There is nothing in the material before me to suggest that there is any constitutional issue in relation to this application. Merely asserting that section 78B is involved is not sufficient (see Narain v Parnell (1986) 9 FCR 479; Applicants NAGM and Ors v The Minister [2002] FCAFC 396 30-31; and SZAWO v The Minister [2003] FMCA 432 5-6.)
The second ground relied on, that the application is to challenge the decision under section 39B of the Judiciary Act, merely invokes the relevant jurisdiction of the court and does not establish a ground for review.
The only attempt in the application to specify a ground is that the decision was ‘wrong and incorrect according to law’. There is no particularisation of this ground. Although the applicant mother was given the opportunity to file an amended application, she did not take that opportunity. I have, however, considered the Tribunal reasons for decision to consider whether the application is so clearly untenable that it cannot possibly succeed.
The applicants arrived in Australia in April 1993 as visitors. In February 2002 they lodged an application for protection visas. That application was refused and they sought review by the Tribunal.
The Tribunal outlined the applicants’ claims. Only the primary applicant, the mother, made claims under the Refugee Convention. She claimed that if she returned to Tonga she would engage in political activities to oppose the Tongan Constitution and the political system and that she feared persecution on the basis of her political opinion. The Tribunal held a hearing at which the applicant mother gave evidence. The reasons for decision state that she had not been politically active in Tonga or in Australia but claimed that she was unable to return to Tonga as she did not like the political movement and that she was afraid of the war between the people and the government.
The Tribunal took into account the nine year delay in application for a protection visa in its assessment of the applicant mother’s uncorroborated claims and the genuineness of her alleged fear of persecution. Her explanation for the delay (that it was not the appropriate time) was considered. The Tribunal was not satisfied that this explanation was plausible in view of the applicant mother's demonstrated ability to access the migration system and apply for other visas.
The Tribunal had regard to the applicant mother's statement that she had come to Australia to visit her family and that she had no profile in either Australia or Tonga of political activism or interest. It concluded that she had created her claims in order to enhance her claim to refugee status. It had regard to independent evidence in relation to the situation in Tonga. It appears from the Tribunal reasons for decision that the substance of such independent information was put to the applicant mother in the course of the hearing.
Having regard to such information and to the absence of evidence of any harm suffered by the applicant mother, the Tribunal was not satisfied that the applicant mother had a well-founded fear of Convention based persecution in Tonga.
I am satisfied from all the material before me that the applicant mother was put on notice of the critical issue of concern about her credibility and other matters as required by Kioa v West (1985) 159 CLR 550. The departmental delegate had written to her in connection with her protection visa application in April 2002, referring to the absence of a description of the nature of the activities she would involve herself in on return to Tonga and the absence of detail in relation to activities involved in the past. That letter stated that the lack of detail raised credibility concerns in relation to the applicant's claims. Independent information about Tonga was also put to the applicant. According to the delegate's decision she did not reply to this letter. The Tribunal also wrote to the applicant on 13 August 2003 advising her that it was unable to make a decision in her favour on the material before it and inviting her to a hearing which she attended on 8 September 2003.
The Tribunal's adverse credibility finding in relation to the applicant was open to it on the evidence before it and for the reasons that it gives. Credibility is a matter for the Tribunal par excellence, Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407. Also see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. No grounds to challenge the Tribunal’s credibility findings are apparent on the material before the Court.
There is nothing in the material before me to indicate any basis to impugn the decision of the Tribunal. There is no substance to the grounds of review advanced and no error let alone a jurisdictional error is apparent in the Tribunal procedures or findings. There is nothing to suggest, as the applicant claimed, that the decision was incorrect and wrong in law.
I am satisfied that the case raised in the application for review is doomed to fail. There is nothing in the material before me to suggest that the applicants would have any prospect of success on any other basis. There is no real question to be tried. The applicants’ case is clearly untenable on the material before the Court. I am satisfied in the particular circumstances of this case that no reasonable cause of action is disclosed and that the proceedings should be dismissed under Rule 13.10 of the Federal Magistrates Court Rules.
This conclusion makes it unnecessary for me to consider the other grounds for summary dismissal relied upon by the respondent. However I would note that insofar as it is asserted that the applicants are in default of the orders that were made by a Registrar, it is not apparent that the order of the Registrar in relation to filing ‘any’ amended application was mandatory (rather than merely permissive but providing a time deadline). It is not, however, necessary to determine that issue in these proceedings.
RECORDED : NOT TRANSCRIBED
The respondent seeks that the applicants pay costs. The applicants have been unsuccessful. It is appropriate that the applicants meet the respondent's costs. The respondent indicates that costs in the order of $5,000 have been incurred. However, bearing in mind the nature of this and other similar matters and the basis on which the application was dismissed, I consider that the sum of $3,000 is appropriate and that costs should be fixed in that amount under the Federal Magistrates Court Rules.
RECORDED : NOT TRANSCRIBED
The respondent’s application that Mr George Fonua pay the respondent's costs should be adjourned for hearing before me at 2:15pm on Friday, 2 July, 2004.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 9 July 2004
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