SZBPS v Minister for Immigration
[2005] FMCA 23
•17 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBPS v MINISTER FOR IMMIGRATION | [2005] FMCA 23 |
| MIGRATION – Review of Refugee Review Tribunal decision – summary dismissal of the application as disclosing no reasonable cause of action. |
Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 426A
Applicant A135/2002 v Minister for Immigration [2003] FCA 708
Applicant A163/2002 v Minister for Immigration[2003] FCA 677
Applicant A175/2002 v Minister for Immigration [2003] FCA 829.
Chung v University of Sydney [2001] FMCA 94
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236
Kosi v Minister for Immigration [2003] FMCA 340
Miller v Wertheim and Anor [2001] FMCA 103
Muin v Refugee Review Tribunal [2002] HCA 30
NAVX v Minister for Immigration [2004] FCA 346
SBBS v Minister for Immigration [2002] FCAFC 361
SCAA v Minister for Immigration [2002] FCA 668
SDAE v Minister for Immigration [2003] FCA 959
SZAKV v Minister for Immigration [2004] FMCA 222
SZBWF v Minister for Immigration [2004] FMCA 83
Webster v Lampard (1993) 177 CLR 598;
Xie v Immigration Department [1999] FCA 365
Yo Han Chung v University of Sydney [2002] FCA 186)
| Applicant: | SZBPS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2122 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 17 January 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 January 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr P Reynolds Clayton Utz |
INTERLOCUTORY ORDERS
The application for judicial review filed on 10 October 2003 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2122 of 2003
| SZBPS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an interlocutory application by the respondent Minister filed on 24 November 2004 seeking the summary dismissal of an application for judicial review filed on 10 October 2003. That application sought review of a decision of the Refugee Review Tribunal (“the RRT”) made on 21 August 2003 and handed down on
17 September 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The Minister's summary dismissal application is supported by an affidavit by Patrick David Reynolds filed on 24 November 2004. The application is also supported by written submissions filed on 11 January 2005. The judicial review applicant has also filed written submissions on
17 January 2005 as well as an affidavit. I received that affidavit over the objections of Mr Reynolds. The applicant was cross-examined on it. I also have before me the court book filed on 9 March 2004.
The Minister's application for summary dismissal asserts that the judicial review application discloses no cause of action. Alternatively, the Minister seeks summary disposal of that application on the basis that it is frivolous or vexatious or an abuse of process. The judicial review application contains nine paragraphs which set out eight grounds of review. These are grounds which appear quite commonly in judicial review applications. None are particularised. In the absence of particulars they are meaningless.
I agree with and adopt the outline of submissions filed on 11 January 2005 on behalf of the Minister in relation to the primary ground supporting the summary dismissal application:
Chronology
DATE
EVENT
18 October 2002
Application for Protection Visa lodged.[1]
6 December 2002
Delegate of the Minister refuses the grant of the Protection Visa.[2]
20 December 2002
Applicant applies for RRTreview of delegate's decision.[3]
18 July 2003
RRT invites Applicant to hearing before it.[4]
10 August 2003
RRT receives fax from the Applicant indicating that the Applicant wishes to attend the hearing.[5]
21 August 2003
RRT hands down decision affirming Delegate’s decision.[6]
31 December 2003
Applicant applies to the Federal Magistrates Court of Australia for review of the RRT's decision.[7]
12 February 2004
Directions hearing before Registrar Kavallaris. The Court ordered, inter alia, that "The Applicant file and serve any amended application and evidence upon which he proposes to rely on or by 15 May 2004."
[1] Court Book filed on 9 March 2004 ("CB") at 1-41.
[2] CB 45-57.
[3] CB 58-61.
[4] CB 71-72.
[5] CB 75.
[6] CB 82-89.
[7] Annexure A of the affidavit of Patrick David Reynolds filed on 24 November 2004.
Legislation
2.1Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) ("FMC Rules") provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
b)the proceeding or claim for relief is frivolous or vexatious; or
c)the proceeding or claim for relief is an abuse of the process of the Court."
2.2 Rule 1.05 of the FMC Rules provides:
(1) It is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984, in whole or in part and modified or dispensed with, as necessary.
2.3 Order 20 Rule 2 of the Federal Court Rules ("Rules") provides:
(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court;
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2)The Court may receive evidence on the hearing of an application for an order under subrule (1).
2.4 Order 54B Rule 5 of the Rules provides:
In applying Order 20, rule 2 to applications to which this Order applies, that rule is to be construed as if paragraph (1)(a) read `no reasonable basis for the application is disclosed.
2.5Accordingly it is submitted that through the application of FMC Rule 1.05(2), Order 54B Rule 5 of the FC Rules applies such that Rule 13.10(a) of the FMC Rules reads "no reasonable basis for the application is disclosed".
Principles
3.1The court will exercise its discretion to summarily dismiss an application for judicial review on the grounds that no reasonable basis for the application is disclosed where:
a)the case of the Applicant is "so clearly untenable that it cannot possibly succeed";[8]
[8] General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236; SZBWF v Minister for Immigration [2004] FMCA 83 (2 March 2004); SDAE v Minister for Immigration [2003] FCA 959.
b)were the case to go to trial in the ordinary way it is "apparent that it must fail";[9]
[9] Webster v Lampard (1993) 177 CLR 598; Xie v Immigration Department [1999] FCA 365; SZBWF v Minister for Immigration [2004] FMCA 83 (2 March 2004); Applicant A175/2002 v Minister for Immigration [2003] FCA 829.
c)one can say without doubt, on the whole of the material, that there is no real question to be tried;[10] or
[10] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Miller v Wertheim and Anor [2001] FMCA 103; Kosi v Minister for Immigration [2003] FMCA 340.
d)where there is no factual substratum to support the claim made.[11]
[11] Applicant A135/2002 v Minister for Immigration [2003] FCA 708; Applicant A163/2002 v Minister for Immigration[2003] FCA 677.
3.2Where the Applicant is unrepresented, and in considering whether or not to exercise its discretion to grant summary dismissal on the ground that no reasonable basis for the application is disclosed, the court will not limit itself to the arguments put forward by the applicant but must independently consider whether an arguable case based on the material could be made out.[12]
[12] Chung v University of Sydney [2001] FMCA 94 at [7] to [14] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186); Kosi v Minister for Immigration [2003] FMCA 340.
Application to the present case
4.1For the reasons identified in paragraphs 4.2 to 4.4 below, the Applicant submits each of the following in the alternative:
a)the case of the Applicant is so clearly untenable that it cannot possibly succeed;
b)it is apparent that were this case to proceed to final hearing it must fail;
c)one can say without doubt that on the whole of the material there is no real question to be tried; and
d)there is no factual substratum to support the claims made.
4.2The Applicant's claims are set out in the application filed on 31 December 2003. Each of the grounds are dealt with below:
(a)Ground 1: "The tribunal made his decision in bad faith"
An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker and it must be clearly alleged and proved.[13] The circumstances in which the court will find an administrative decision-maker had not acted in good faith will be rare and extreme.[14] Further, an allegation of bad faith in a section 39B proceeding must be particularised.[15] The Applicant has not particularised this ground of review and on the face of the record there is no evidence capable of supporting such an allegation. This ground of review must fail.
[13] SBBS v Minister for Immigration [2002] FCAFC 361 at [43].
[14] SBBS v Minister for Immigration [2002] FCAFC 361 at [44].
[15] Order 54B rule 2 of the FC Rules.
(b)Ground 2: "The tribunal deprived me of the natural justice"
This ground of review is not particularised and on the face of the material before the Court it is obvious that there is no possible denial of natural justice:
(i)the Applicant was provided with an opportunity to attend a hearing before to RRT.[16] The Applicant received this invitation but for undisclosed reasons the Applicant elected not to attend;[17] and
[16] CB 71-72.
[17] CB 75.
(ii)this is also a matter to which section 422B applies.
(c)Ground 3: "The tribunal's decision denied the evidentiary proof of my claim"
This ground is not particularised and it impermissibly invites the Court to revisit the merits of the Applicant's case. This ground of review must fail.
(d)Ground 4 "The tribunal's decision did not reflect the material facts of my claim"
This ground is not particularised and it impermissibly invites the Court to revisit the merits of the Applicant's case. This ground of review must fail.
(e)Ground 5: "The tribunal has given a decision, which was preset in the back of it's mind"
Insofar as this allegation of actual bias is a separate ground of review from that of bad faith, the party alleging bias has a heavy onus, and it is difficult to demonstrate actual bias solely upon the published reasons.[18] The Applicant has provided no particulars and there is no evidence on the face of the material before the Court to support this claim. It is obvious that this ground of review must fail.
[18] SCAA v Minister for Immigration [2002] FCA 668 per von Doussa J at [36]-[38].
(f)Ground 6: "The tribunal mixed up many facts with this decision which affected the decision"
This ground is not particularised and it impermissibly invites the Court to revisit the merits of the Applicant's case. This ground of review must fail.
(g)Ground 7: "The tribunal concentrated in particular fact, while ignored many other facts in this condition"
This ground is not particularised and it impermissibly invites the Court to revisit the merits of the Applicant's case. This ground of review must fail.
(h)Ground 8: "The tribunal made up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim"
The Applicant has not particularised this ground of review, and on the face of the material before the Court it is clear that this ground of review cannot succeed. It is obvious on the face of the RRT decision that the RRT considered the material that the Applicant had placed before the Delegate and the RRT - the RRT simply was unable to be satisfied as to the Applicant's claims. Further, the RRT was not obliged to make positive inquiries into the Applicant's claims. Insofar as the Applicant complains that the RRT did no believe the "genuine convention based refugee claim", this impermissibly invites the Court to revisit the merits of his case. This ground of review must fail.
4.3The Respondent Minister also submits that on the face of the material before the Court there is no matter capable of amounting to jurisdictional error. The RRT's decision turns primarily upon its lack of satisfaction as to the Applicant's claims - a conclusion which is unsurprising given the Applicant's failure to attend the hearing to which he was invited.[19]
4.4It is also to be noted that the Applicant elected not to file any amended application or evidence upon which he proposes to rely despite the order of the Court on 12 February 2004 that allowed him to do so on or by 15 May 2004.
4.5Accordingly, it is respectfully submitted that no reasonable basis for the application has been disclosed and the proceedings should be dismissed with cost.
[19] Note Allsop J in NAVX v Minister for Immigration [2004] FCA 346 ([10]-[12]; and Raphael FM in SZAKV & Anor v Minister for Immigration [2004] FMCA 222 at [13]-[16]
There is on the face of the judicial review application nothing for the Court to review. The applicant has had an extended opportunity to augment that application but he did not do so until 17 January 2005 in response to the Minister's summary dismissal application. The applicant in his written submissions asserts actual bias but there is no substance to the assertion. He also asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) but that section is not relevant to the decision of the RRT in this case. There is an obscure reference to the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 and an assertion of bad faith which also has no substance.
The only issue arising out of the written submissions and affidavit which requires further consideration is the applicant's contention that there was a breach of the rules of natural justice. The applicant said that at the time the RRT made its decision he was sick and could not attend the hearing to which he was invited. The presiding member deals with that issue on page 85 of the court book. He says that the applicant was advised that the RRT had looked at all the material before it in relation to his application but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing and give evidence or make submissions in support of his claims. The applicant did not attend a hearing arranged at his request. No explanation was received by the RRT. The evidence given by the applicant today confirms that that statement by the presiding member is correct. Although the applicant says that he was at the time sick and unable to attend the hearing the only evidence is what the applicant himself says. This is not an issue that the applicant raised with the RRT at any stage. Neither did the applicant raise it in his judicial review application filed on 10 October 2003. It was raised for the first time today.
The RRT was permitted by s.426A(1) of the Migration Act to proceed in the absence of the applicant when he failed to appear. The RRT was also permitted by s.426A(2) to adjourn and have a hearing at a later date. If the RRT had been put on notice that the applicant was at the time unwell, procedural fairness may well have required an adjournment. However, there was nothing before the RRT to indicate that the applicant was in any difficulty. Nothing was drawn to the RRT’s attention prior to the decision being made. In the circumstances it was not procedurally unfair for the RRT to proceed in the absence of the applicant.
There is nothing in the judicial review application pointing to any jurisdictional error. Neither on my own reading of the court book is any jurisdictional error apparent. The matters dealt with at the hearing this afternoon confirm that the judicial review application is doomed to fail. The applicant presented to me several bundles of documents which he said supported his claim that he is a refugee. He told me, however, that he only obtained these documents quite recently. They were not available at the time the RRT made its decision. Therefore, they could not have influenced it. In the circumstances, even if the applicant had attended a hearing, he had nothing to substantiate his protection visa application. If there had been a hearing, the result would have been the same.
I will grant the Minister's application for summary dismissal of the judicial review application on the basis that the judicial review application discloses no reasonable cause of action.
On the question of costs, I am satisfied that costs should follow the event. Mr Reynolds seeks an order for costs fixed in the sum of $3,500. I am satisfied that on a party-party basis, costs of the order of $3,000 have been reasonably incurred on behalf of the Minister. The applicant did not oppose a costs order in principle but indicated that he would need time to pay. I will not require payment of costs by any particular time. 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 $3,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 January 2005