SZBOW v Minister for Immigration

[2004] FMCA 750

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBOW v MINISTER FOR IMMIGRATION [2004] FMCA 750

MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal – no reasonable cause of action. 

Applicant: SZBOW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2077 of 2003

Delivered on: 28 October 2004

Delivered at: Sydney

Hearing date: 28 October 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.

2. That the solicitor for the respondent Minister notify the applicant of the orders made today and also of the effect of Rule 16.05(2) of the Federal Magistrates Court Rules.

3. That the applicant pay the respondent Minister's costs set in the amount of $2,800. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2077 of 2003

SZBOW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 2 September 2004 by the respondent seeking summary dismissal of proceedings initiated by the applicant pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

2. The applicant, by an application filed on 7 October 2003 sought review of a decision of the Refugee Review Tribunal (the Tribunal) which was handed down on 28 August 2003 affirming a decision of a delegate of the respondent not to grant her a protection visa.  For the purposes of this judgment I refer to the applicant in the application filed on

   
   

   7 October 2003 as ‘the Applicant’.

3. The Applicant is a national of Mongolia who claimed to fear persecution for reason of political opinion as a supporter of the Mongolian Democratic Party on the basis that she claimed to have been denied freedom of political expression.  Her application was refused.  She sought review by the Tribunal, repeated her claims but did not provide any further material or evidence. 

4. On 24 June 2003 the Tribunal wrote to the applicant inviting her to attend a hearing scheduled for 28 July 2003.  The letter was sent to the applicant at the address provided in the review application and a copy was sent to her adviser at the other address provided in the review application.  The letter specified the time, date and place of the hearing, and included a statement of the effect of section 426A of the Migration Act and warned that the Tribunal may proceed to a decision without taking any further action if the applicant failed to attend the hearing. 

5. The Tribunal reasons for decision state that the applicant did not reply to the invitation of 24 June 2003, failed to attend the hearing scheduled for 28 July 2003 and that no explanation for the failure to attend was received by the Tribunal.  Nor is there anything in the material before me to suggest that the applicant had sought an adjournment of the hearing. 

6. In those circumstances the Tribunal stated that it was entitled to infer that the applicant had no interest in the outcome of the matter and proceeded to exercise the discretion conferred by section 426A(1) of the Act to make a decision on the available material. 

7. The Tribunal had regard to country information in relation to the state of democracy in Mongolia, in particular suggesting that the country had a functioning democratic system.  It referred to the specifics of the applicant's claims and of her travel to and from the People's Republic of China from Mongolia and also to some inconsistencies between her claims and the independent country information.  

8. Based on the vagueness and internal inconsistency of the applicant's claims, the inconsistency with independent information and the absence of evidence from the applicant at a hearing the Tribunal found that it could only rely upon the independent evidence and on that basis concluded that the applicant's claims were not factual.  It expressed itself as all the more confident in that finding in view of the fact that the Mongolian authorities had permitted the applicant to use her passport for a considerable of time and on frequent basis.  It was not satisfied on the material before it that the applicant faced a real chance of Convention-related persecution in Mongolia. 

9. The application for review by the applicant was filed in this court on 7 October 2003.  It relies on two grounds which are as follows:

   1. The Tribunal's conclusions that I am not a person to whom Australia has protection obligation under the Refugee Convention is incorrect because the Tribunal has no evidence for such conclusion. 

   2.  The Tribunal erred in law by giving weight only to a few sources of information on Mongolia without proper examination of all information available to the Tribunal.

10. There is no further particularisation of the grounds relied on in the application.  The applicant was given an opportunity in consent orders made at the directions hearing conducted on 5 February 2004 to file and serve any amended application and affidavits on or before 11 March 2004.  No such further documentation has been filed. 

11. On 2 September 2004 the respondent filed an application seeking dismissal of these proceedings as disclosing no reasonable cause of action.  The applicant is not present today.  The respondent nonetheless seeks that the court proceed to consider the application for summary dismissal pursuant to Rule 13.03A(d).  The respondent has provided a copy of an affidavit sworn by the solicitor for the respondent from which I am satisfied that the application for summary dismissal was served on the applicant by letter sent on 2 September 2004.  Moreover, while that letter specified that the application was to be heard today at 10:15 am a subsequent letter on 17 September 2004 advised the applicant that the matter was re-listed on the same day but at 1:00 pm. 

12. In the particular circumstances of this case where the proceedings have been brought to the attention of the applicant and the respondent seeks that the court proceed with the application for summary dismissal I have proceeded on that basis pursuant to Rule 13.03A(d). 

13. Turning then to the basis for the claim for summary dismissal; the power of the court to dismiss proceedings summarily is a power that should be exercised only in clear cases and I have borne in mind the restrictions on the making of such orders.  The court should be satisfied that there is no real question to be tried, that the case is clearly untenable and cannot possibly succeed or that it has no reasonable hope of success.  (See General Steel Industries v Commissioner for Railways of New South Wales (1964) 112 CLR 125 and SZBWF v MIMIA [2004] FMCA 83).

14. I have considered whether it is plain and obvious that the grounds for the application are unarguable or whether it is a hopeless case with no chance of success.  In this case the grounds as expressed in the application do traverse areas which might give rise to a basis for review of a Tribunal decision.  However, I consider that the mere raising of a general unparticularised ground which might give rise to a basis for review does not of itself establish that there is a reasonable cause of action.  It is necessary to consider the application in context, the context being the absence of any particularisation and the Tribunal decision which is referred to in the application. 

15. The first ground for review, while using the expression ‘no evidence’, in fact takes issue with the Tribunal conclusion that the applicant was not a person to whom Australia has protection obligations as being incorrect.  Insofar as it takes issue with the correctness of the decision, it seeks merits review and insofar as it asserts that the Tribunal has no evidence that is clearly inconsistent with the Tribunal's reference to a significant body of independent evidence which is set out and discussed in the Tribunal reasons for decision as well as the absence of clarification by the applicant due to her failure to attend the Tribunal hearing and the vagueness and internal inconsistency of the applicant's claims as put in writing to the Department and repeated to the Tribunal. 

16. Insofar as this ground takes issue with the Tribunal proceeding under section 426A of the Migration Act to make a decision without taking further steps to obtain evidence from the applicant or to enable her to appear before it, it is clear on the material before the court that the Tribunal met its obligations under section 425A in relation to the invitation to the applicant to appear.  It gave her notice of the details of the hearing in accordance with subsection (1) in the letter that was sent to her and to her migration agent at the correct addresses on 24 June 2003.  The notice was sent by an appropriate method and provided at least the prescribed period of notice and also contained a statement of the effect of section 426A.  In that sense the Tribunal procedures establish no basis either in the terms of the application or, indeed, in any other way, for a claim of jurisdictional error.  While in isolation it might be argued that Ground 1 articulating a ground which could be ground for review, having regard to the decision and the absence of particularisation by the applicant I am not satisfied that such ground is in any way sustainable.  Indeed, it is plain and obvious on the material before the court that the ground is unarguable.

17. In relation to the second ground (that the Tribunal erred in law by giving weight only to a few sources of information without proper examination of all the information available to it) again there is no particularisation or clarification in that ground of precisely what is meant.  Insofar as the applicant seeks to take issue with the weight given by the Tribunal to particular information, clearly that is a matter for the Tribunal. 

18. There is nothing in the material before me to indicate any basis to impugn the decision of the Tribunal.  The applicant's case is doomed to fail both on the grounds in the application and on any other basis.  On the material before the court there is nothing to suggest that the applicant would have any prospect of establishing a jurisdictional error in the Tribunal decision or its procedures. 

19. On that basis then, as the applicant's case is untenable on the material before the court, I am satisfied that in the particular circumstances of this case no reasonable cause of action is disclosed and that it is proper that the proceedings should be dismissed under Rule 13.10(a) of the Federal Magistrates Court Rules.

20. There is one further matter that I wish to address. That is that although I am not proceeding to dismiss the application on the basis of the absence of the applicant under Rule 13.03A(c), I am making orders in the absence of a party. In the particular circumstances of this case I consider it appropriate that in addition to advising the applicant of the orders made today the respondent should also advise the applicant of the effect of Rule 16.05(2)(a) to cater for the possibility that there is some legitimate reason for her non-appearance today.

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks costs in the sum of $2,800 and I am satisfied in all the circumstances that this is an appropriate amount. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  4 November 2004