SZBRB v Refugee Review Tribunal
[2005] FMCA 1955
•12 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBRB v REFUGEE REVIEW TRIBUNAL & ANOR | [2005] FMCA 1955 |
| MIGRATION – RRT decision – Indian woman fearing family humiliation – previous judicial review proceedings failed at interlocutory stage – hopeless prospects – application dismissed as abuse of process. |
Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules, 13.10(c)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA FC 119
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZBRB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 285
| Applicant: | SZBRB |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2304 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 12 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Second Respondent: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The substantive application is dismissed under Rule 13.10(c) as an abuse of the process of the Court.
The applicant must pay the second respondent’s costs in the sum of $2,500.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 18 September 2003 reference N02/45117 or for review of the decision of the delegate of the second respondent dated 30 October 2002 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2304 of 2005
| SZBRB |
Applicant
And
| REFUGEE REVIEW TRIBUNAL |
First Respondent
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The principal application in this matter was filed on 22 August 2005 and invokes the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) by seeking orders by way of judicial review of the decision of the Refugee Review Tribunal made on 25 August 2003. The Tribunal affirmed a decision of a delegate made on 11 October 2002 refusing to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act (Cth) s.8).
The application was given a first court date before me on 27 September 2005. On that occasion the applicant appeared, and the Minister’s solicitors foreshadowed an interlocutory application for the summary dismissal of the application. I gave directions for the listing of that motion today. The applicant has appeared and has argued against that order.
In my opinion this is an appropriate case for the Court to exercise its power of summary dismissal under r.13.10(c), on the ground that the proceeding is an abuse of process of the Court. Other paragraphs of r.13.10 were also invoked by the Minister, but I propose to deal with it under paragraph (c), considering both the significance of a history of litigation engaged in by the applicant and, more significantly, whether the present application is “plainly untenable and arguably doomed to fail” (see NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA FC 119 at [61]).
The applicant is a national of India who pursued university studies in Australia between 1997 and 1999. She returned to Australia in 2002, and applied for a protection visa on 11 October 2002. The protection visa application had a statement attached, in which the applicant claimed that her life was at risk at the hands of religious elders in her village who wished her to be devoted to the village god and marry the deity. She claimed to have been assaulted by the elders and threatened with death.
However, she disclaimed the truth of the statement when she attended a hearing by the Tribunal on 13 August 2003. She told the Tribunal that she did not claim to have come to actual harm at the hands of her parents or anyone else because of her reluctance to marry as requested by her parents. The Tribunal said:
The applicant explained that she is fearful of returning to India because of the humiliation she feels she will endure and the shame she believes the circumstances of her return will bring upon her parents. Her parents believe her to be successfully pursuing a career in Australia. She comes from a small village and is worried that everyone will know about her problems and that her success overseas is not real. Her father has a heart condition and she is worried what impact the loss of face may have on his health.
It appears that she had incorrectly told her parents that she had obtained permanent residence in Australia. The Tribunal commented:
Without wishing to diminish these very real concerns which the applicant holds about returning to India, she did not point to any past instances of serious harm or conduct capable of constituting persecution which she had encountered in India.
In its “findings and reasons” the Tribunal accepted that the applicant “may well suffer feelings of humiliation and shame if she returns to India”. But it said “such matters are completely unrelated to the Refugee’s Convention”. The Tribunal’s conclusion was:
I am not satisfied from evidence before me that the applicant has been in the past, or that there is a real chance in the future of her being persecuted for a Convention reason. Therefore I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention. Accordingly, I am not satisfied that she is a refugee.
The applicant commenced proceedings for judicial review of the Tribunal’s decision in this Court on 17 October 2003 invoking the same jurisdiction as the present application. Her application was filed on her behalf by a firm of solicitors, Ward Maxwell & Company. It contained six grounds seeking to identify jurisdictional error in the Tribunal’s decision.
The application was dismissed by the Registrar when neither the applicant nor her legal representative attended the first court date as originally appointed, nor on its adjournment. The applicant then both appealed to the Federal Court, and also sought reinstatement of her application in this Court. Her appeal was eventually dismissed by consent with costs.
Her reinstatement application was addressed by Raphael FM on 28 April 2004, and his Honour published reasons for refusing to reinstate the application (see SZBRB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 285). His Honour said:
5. In many circumstances I would have been inclined to reinstate the matter and perhaps obtain some further information about the conduct of the solicitor involved. But in this case I have declined to do that. The reason for my decision is that it seems to me that in all the circumstances the applicant's claim for review is hopeless. I have had the opportunity of reading the Tribunal's reasons for decision. It would appear from them that the applicant is no stranger to Australia. She came here sometime ago and studied. She then seems to have returned to India and then returned to Australia.
His Honour then discussed the Tribunal’s reasons, and noted that the applicant accepted the truth of the statements made by the Tribunal as to her evidence given to it. He concluded:
I am satisfied that the applicant, in the light of the admitted facts, would be unable to show any error in law on the part of the Tribunal….
Under the circumstances I believe it would not be in the interests of justice to reinstate this application….
The applicant filed an appeal to the Federal Court from his Honour’s judgment, but filed a notice of discontinuance on 24 June 2004. Her present application was brought some 14 months later.
The application which has been filed contains four grounds. The first alleges that Tribunal asked itself the wrong question “in deciding that the applicant should continue with the hearing on 13 August 2003”.
I cannot find any sense in that contention, and the applicant has not explained it to me.
Grounds two and three allege bias and denial of natural justice, but this has been given no substance by any particulars or evidence on affidavit. Reading the Tribunal’s decision one is struck by the fact, as Raphael FM said, that the Tribunal has been “very generous with the applicant in connection with her conduct in the filing of a clearly inaccurate application for protection”. In my opinion, noting the absence of particulars and evidence, the applicant has no basis for contending that the Tribunal has shown bias in its treatment of the claims made by the applicant or otherwise in its procedures.
Ground four does not purport to identify jurisdictional error.
The applicant filed an amended application on 25 November 2005. This is a rambling document which the applicant was not able to explain to me today. It repeats an unparticularised allegation of denial of procedural fairness.
It also claims that there was, in effect, a failure to put inconsistencies between the applicant’s original claims and her later claims to the applicant in writing, i.e. under s.424A. However as I have indicated, the Tribunal very generously did not draw adversely from the applicant’s original and disclaimed claims. Its reasoning accepted the truth of the applicant’s evidence to it, but found no Convention reason for the harms feared. An argument based on s.424A is therefore hopeless.
There is a contention:
The Tribunal failed to identify that the applicant meets the definition of refugee, outlined by the UN Convention, as a ‘member of a particular social group’ and she has genuine fear of harm back in the country of her nationality.
However, I do not consider that it is at all arguable that the Tribunal made such an error, since the claims made by the applicant were only that the applicant feared embarrassment and rejection by her family. The Tribunal addressed that claim and, in my opinion, it made no arguable error in concluding that this fear was not based upon a Convention reason for persecution.
The amended application also criticised the Tribunal for not providing “any country information”. However, it is plain that the Tribunal was not asked to consider any country information, and did not find it necessary itself to refer to any.
The amended application also makes general contentions that the Tribunal misconstrued and misapplied the definition of “persecution” and notion of “well founded fear”, however these contentions are not developed by the applicant in any manner that persuades me to think that there could be any substance in them.
Taking into account all of the documents which the applicant has filed in this present application, and what she has said to me today, I am in agreement with Raphael FM that her claim for judicial review remains “hopeless” and that it would not be in the interests of justice to permit the present application to continue.
As well as the reasons which moved his Honour to reject the reinstatement application, the applicant now in the present application would face a further difficulty in obtaining relief. This arises from the Court’s discretion to refuse relief due to the applicant’s delay in commencing the present proceedings, and the abusive nature of the proceedings in the light of the previous proceedings which were pursued on appeal and then discontinued. In my opinion, the application may also be regarded as hopeless in the face of these difficulties (c.f. SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80]).
For all the above reasons I consider it appropriate to dismiss the application under r.13.10(c).
The application by the Minister also seeks a direction to the Registry of this Court not to permit further applications by the applicant for review of decision making in relation to her protection visa application. In the light of the history of litigation which the applicant has engaged in, and in view of her reliance on unmeritorious documents prepared by unqualified people from precedents having dubious relevance to her situation, I consider it is appropriate to make such a direction.
I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 12 January 2006