SZBSY v Minister for Immigration
[2004] FMCA 226
•15 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBSY & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 226 |
| MIGRATION – Motion for summary dismissal – applications to review decisions of the Refugee Review Tribunal – refusal of protection visas – whether the applications disclose a reasonable cause of action – applications not pointing to any jurisdictional error – applicants failing to attend RRT hearings – allegations against a migration agent – no reviewable error disclosed or capable of being disclosed – motion granted. |
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.48B, 417
Applicant A135/22002vMinister for Immigration [2003] FCA 708
Applicant A 163 of 2002vMinister for Immigration (2002) FCA 677
Applicant M171 v Minister for Immigration [2004] FMCA 23
Chung v University of Sydney [2001] FMCA 94
E Chhoun v Minister for Immigration [2004] FMCA 72
Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87
General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236
Kosi v Minister for Immigration [2003] FMCA 340
Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194
NALE v Minister for Immigration [2003] FMCA 366
NASB v Minister for Immigration [2004] FCAFC 24
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
| Applicants: | SZBSY SZBSZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Nos: | SZ2273 of 2003 SZ2272 of 2003 |
| Delivered on: | 15 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 15 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr R White Sparke Helmore |
ORDERS
The application is dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2273 of 2003
SZ2272 of 2003
| SZBSY, SZBSZ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me notices of motion in two matters, SZBSY and Minister for Immigration and SZBSZ and Minister for Immigration. The motions in both matters seek the dismissal of judicial review applications filed on 24 October 2003 with costs on the basis that the applications failed to disclose a reasonable cause of action. The matters are virtually identical in terms of the factual basis. In both matters affidavits by Katie Jane Bryant dated 19 January 2004 set out the factual circumstances.
I received those affidavits and I adopt paragraphs 3 to 9 of that affidavit for the purposes of this judgment in relation to SZBSY and the same numbered paragraphs in the affidavit in relation to the application by SZBSZ:
On 5 November 2002, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). Attached to that application was a letter from the applicant’s representative and the applicant’s statement. Annexed hereto and marked “A” is a true copy of that application, letter and statement.
On 19 November 2002, a delegate of the respondent (“the delegate”) made a decision to refuse to rant the applicant a protection visa and sent a letter to the applicant attaching the reasons for that decision. Annexed hereto and marked “B” is a true copy of that letter and those reasons.
On 16 December 2002, the applicant lodged an application for review of the delegate’s decision with the RRT. Annexed hereto and marked “C” is a true copy of that application.
On 28 August 2003, the RRT sent a letter to the applicant informing him that it was unable to make a favourable decision on the information before it and inviting him to a hearing. Annexed hereto and marked “D” is a true copy of that letter.
On 2 September 2003, the RRT received a facsimile from the applicant’s representative indicating that the applicant did not wish to attend a hearing. Annexed hereto and marked “E” is a true copy of that facsimile.
On 2 September 2003, the RRT constituted by Jill Toohey made a decision affirming the decision of the delegate not to grant the applicant a protection visa. Annexed hereto and marked “F” is a true copy of that decision.
On 24 October 2003, the applicant lodged an application for judicial review with the Federal Magistrates Court. Annexed hereto and marked “G” is a true copy of that application.
The Minister also relies on written submissions prepared in both matters and filed on 5 March 2004. The applications in both of these matters on their face do not point to any error of law on the part of the RRT, let alone any jurisdictional error.
Applicant SZBSZ invites the Court to refer to an attached letter in which he refers to his fear of persecution. In his application form he states that he was involved in Falun Gung in China and that although he was invited to attend a hearing by the RRT he was not present at the required time.
Applicant SZBSY simply invites the Court to refer to pages 4 to 5 of the decision and reasons of the RRT which sets out the applicant's claims. In an annexed affidavit he also annexes a letter in effectively the same terms as the letter prepared by or on behalf of SZBSZ. I note that both applicants appear to live at the same address and appear to have made the same or very similar claims to the RRT. That, of course, does not mean that their claims are false; it means that they raise the same issues.
I invited both applicants to tell me what they thought was wrong with the decision of the RRT. Both applicants told me that they were concerned that their migration agent, Jack Meng, had completed on their behalf a response to hearing invitation form which stated that they did not wish to attend the RRT hearing. Their absence at the RRT hearing was clearly a factor of significance in the rejection of their protection visa applications.
The RRT in both cases was not satisfied that the very limited material it had before it supported the protection visa claims that had been made. In both cases the visa applications were dismissed because nothing persuasive had been advanced in support of them. It may well have been that the RRT would have been assisted by the presence of the applicants. In both cases the invitations sent to the applicants and to their migration agent Mr Meng were declined.
Both applicants told me that they did not receive the hearing invitations, although the invitations were sent to their home addresses, as well as to their migration agent. Both told me that the migration agent acted without instructions or even without consultation. Both applicants also told me that they had or could obtain further information to support their protection visa claims. This is information which apparently has become available or might become available in the future and certainly after the decision of the RRT. It was not material which was before the RRT at the time of the RRT decisions.
In neither of these cases have any directions been made by the Court previously. The applications for judicial review on their face do not disclose any course of action. However, in the ordinary course, if it were possible for the applications to be amended in order to identify an asserted ground of review, I would be minded to give the applicants that opportunity. The exchanges between myself and the applicants today, however, indicate very strongly that an amendment to the applications would not help.
Any fault on the part of the migration agent in dealing with the hearing invitation could not support an assertion of jurisdictional error for the reasons given by the Chief Federal Magistrate in Applicant M171 v Minister for Immigration [2004] FMCA 23. Information that may have come to light since the RRT decision or which might become available in the future could not support a claim of jurisdictional error for the reasons advanced by the Full Federal Court in NASB v Minister for Immigration [2004] FCAFC 24, in particular at paragraphs 42 to 50.
In addition, as noted by the Full Federal Court, where information comes to light after a tribunal decision which supports a protection visa application, a remedy is available to the applicant. The applicant can invite ministerial intervention under s.417 or s.48B of the Migration Act1958 (Cth) (“the Migration Act”). The possibility that further information might be available and might become available which could support a protection visa application on the merits is not a reason for this Court to entertain a judicial review application on the limited grounds available to the Court.
I am persuaded that in both of these cases the applications should be dismissed. In the case of applicant SZBSZ I adopt the reasons advanced in paragraphs 5 to 17 of the Minister's written submissions:
The applicant is a citizen of the People’s Republic of China. He claimed that he was introduced to Falun Gong by a friend and participated in a group that was “quite active in the city”. He claimed that after a government crackdown on Falun Gong the members of his group were persecuted. The applicant claimed that he was put into a detention camp where he was beaten and interrogated by the police. He claimed that he was forced to sign a confession in which he agreed to give up the practice of Falun Gong. After being released, he was required to report to the police on a regular basis. The applicant also claimed that he and his family continued to be threatened and harassed by the police and he had to practice Falun Gong in private.[1]
[1] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “A”, page 29 to 30
Whilst the RRT accepted that some Falun Gong practitioners in the PRC face persecution[2], it could not be satisfied of the veracity of the applicant’s claims because they amounted to a number of “very brief unsubstantiated assertions with insufficient information” in support. [3] For example, the applicant had not provided any details about his detention, beatings or harassment.[4]
[2] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “F”, page 52.3
[3] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “F”, page 53.2
[4] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “F”, page 52.7
The decision of the Delegate put the applicant on notice that he had not provided enough detail to support a favourable decision.[5] Likewise, the RRT warned him that it also could not make a decision in his favour on the material before it.[6] Despite this, the applicant chose to add nothing to his initial protection visa application and to decline the RRT’s invitation to hearing. Furthermore, once the applicant had decided to decline the invitation to hearing, he was no longer entitled to appear before the RRT to give evidence and present arguments in support of his application: ss.425A(2)(b) and (3) of the Migration Act.
[5] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “B”, page 37.6
[6] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “D” page 44
In circumstances where the applicant declined the invitation to hearing and provided limited detail and evidence in support of his claims, it was open to the RRT to find that it could not be satisfied that the applicant was in need of protection. .
The present application
Part 4, Rules 4.01, 4.02 and 4.05 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) relevantly provide that the application must state precisely and briefly the orders sought and the basis on which the orders are sought and an applicant must file an affidavit in support of an application whether seeking final, interim or procedural orders unless the evidence relied on is in affidavits already filed in pending proceedings.
In his application for judicial review, the applicant merely asserts that he was involved in Falun Gong in China, that he applied for a protection visa and that he did not attend the RRT hearing. The applicant also refers obscurely to “reasons on my appeal for review dated 22 Oct 2003”.
In the absence of an affidavit accompanying the application, any evidence in support of the application or any particulars or grounds in the application, the respondent has no case to answer.
No reasonable cause of action
Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules deals with the dismissal of a proceeding or claim for relief if that proceeding or claim discloses no reasonable cause of action.
The power to dismiss an application for summary judgment should be exercised with great caution and orders striking out a proceeding should only be made where there is no real question to be tried, or where the claims are clearly untenable and cannot succeed.[7] It must be plain and obvious that the grounds for the application are unarguable or that it is a hopeless case that would fail if it were to go to trial.[8]
In circumstances where an applicant is self-represented, as is the case in these proceedings, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant.[9]
The applicant’s application for judicial review contains no grounds and is devoid of particulars. No affidavit has been filed accompanying the application in the present proceedings and no material facts upon which the applicant’s claims are based are disclosed in the application filed on 24 October 2003. No amended application has been filed. Accordingly, there is no real question to be tried in this matter.
Having particular regard to the applicant’s decision to decline the RRT’s invitation to hearing and the bare claims and lack of evidence he provided in support of his claims, the RRT’s approach reveals no error. Accordingly, the principal application is hopeless and bound to fail.[10]
In light of the above, the application should be dismissed for failing to disclose a reasonable cause of action.
[7]General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236; Webster v Lampard (1993) 177 CLR 598 at [611]; Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at [99]; Applicant A 163 of 2002vMinister for Immigration (2002) FCA 677 at [1]; Applicant A135/22002vMinister for Immigration [2003] FCA 708 at [3]-[6];E Chhoun v Minister for Immigration [2004] FMCA 72 at [19]; SZBWF v Minister for Immigration [2004] FMCA 83 at [24].
[8] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194; Xie v Immigration Department [1999] FCA 365 SZBWF v Minister for Immigration [2004] FMCA 83 at [26] – [27].
[9]Chung v University of Sydney [2001] FMCA 94 at [14]; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186; Kosi v Minister for Immigration [2003] FMCA 340.
[10] NALE v Minister for Immigration [2003] FMCA 366 at [10].
I am persuaded that the application of SZBSY should be dismissed for the reasons advanced in paragraphs 5 to 16 of the Minister's written submissions:
The applicant is a citizen of the People’s Republic of China. He claimed that he was introduced to Falun Gong by a friend and participated in a group that was “quite active” in the city. He claimed that after the government cracked down on Falun Gong practitioners his group members were persecuted. The applicant claimed that he was detained, attacked and interrogated by the police. He claimed he was forced to sign a confession agreeing to give up the practice of Falun Gong. After being released he was forced to report to the local police station on a regular basis. The applicant claimed that he and his family were also harassed by the police and he was forced to practice Falun Gong in private.[11]
[11] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “A”, page 31 to 32
The RRT found that the applicant’s claims amounted to a number of “very brief unsubstantiated assertions with insufficient information” in support.[12] For example, it found that he did not provide any details of his detention including when and how often he was detained, the length of his detention and the details of his beatings.[13]
[12] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “F”, page 55.2
[13] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “F”, page 54.7
Moreover, despite being warned that the RRT was unable to make a favourable decision on the material before it[14], the applicant declined the RRT’s invitation to hearing[15]. Accordingly, he was not entitled to appear before the RRT to give evidence and present arguments in support of his application: ss.425A(2)(b) and (3) of the Migration Act.
[14] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “D”, page 46
[15] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “E”,page 48
The RRT concluded that it was not able to be satisfied of the facts or able to assess the applicant’s chance of persecution in the future[16]. In circumstances where the applicant declined the invitation to hearing and provided limited detail and evidence in support of his claims, it was open to the RRT to find that it could not be satisfied of the veracity of his claims.
[16] Affidavit of Katie Jane Bryant affirmed 19 January 2004, annexure “F”, page 55.3
The present application
Part 4, Rules 4.01, 4.02 and 4.05 of the Federal Magistrates Court Rules relevantly provide that the application must state precisely and briefly the orders sought and the basis on which the orders are sought and an applicant must file an affidavit in support of an application whether seeking final, interim or procedural orders unless the evidence relied on is in affidavits already filed in pending proceedings.
The present application for judicial review does not plead any grounds. It contains no particulars of any alleged jurisdictional error nor is any affidavit in support provided. In these circumstances, the respondent has no case to answer.
No reasonable cause of action
Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules deals with the dismissal of a proceeding or claim for relief if that proceeding or claim discloses no reasonable cause of action.
The power to dismiss an application for summary judgment should be exercised with great caution and orders striking out a proceeding should only be made where there is no real question to be tried, or where the claims are clearly untenable and cannot succeed.[17] It must be plain and obvious that the grounds for the application are unarguable or that it is a hopeless case that would fail if it were to go to trial.[18]
Furthermore, in circumstances where an applicant is self-represented, as is the case in these proceedings, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant.[19]
The applicant’s application for judicial review contains no grounds and is devoid of particulars. No affidavit has been filed accompanying the application in the present proceedings and no material facts upon which the applicant’s claims are based are disclosed in the application filed on 24 October 2003. No amended application has been filed. Accordingly, there is no real question to be tried in this matter.
Having particular regard to the applicant’s decision to decline the RRT’s invitation to hearing and the bare claims and lack of evidence he provided in support of his claims, the RRT’s approach reveals no error. Accordingly, the principal application is hopeless and bound to fail.[20]
In light of the above, the application should be dismissed for failing to disclose a reasonable cause of action.
[17]General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236; Webster v Lampard (1993) 177 CLR 598 at [611]; Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at [99]; Applicant A 163 of 2002vMinister for Immigration (2002) FCA 677 at [1]; Applicant A135/22002vMinister for Immigration [2003] FCA 708 at [3]-[6];E Chhoun v Minister for Immigration [2004] FMCA 72 at [19]; SZBWF v Minister for Immigration [2004] FMCA 83 at [24].
[18] Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194; Xie v Immigration Department [1999] FCA 365 SZBWF v Minister for Immigration [2004] FMCA 83 at [26] – [27].
[19]Chung v University of Sydney [2001] FMCA 94 at [14]; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186; Kosi v Minister for Immigration [2003] FMCA 340.
[20] NALE v Minister for Immigration [2003] FMCA 366 at [10].
In both cases I will dismiss the applications pursuant to rule 13.10(a) of the Federal Magistrates Court.
On the question of costs Mr White seeks an order for costs and tells me that the Minister's costs would be between $2,000 and $3,000, possibly as much as $2,800. Under the scale applicable to a summary or discrete proceeding the Minister would be entitled to receive a lump sum of $1,135 plus the daily hearing fee for a half day hearing of $685. Where the Minister is represented by a solicitor advocate the hearing fee is increased to 150 per cent of the fee. That would produce an outcome approaching an indemnity costs award. In this case an indemnity costs award is not warranted.
The applicant would, of course, prefer not to have to bear any costs and applicant SZBSZ referred to their impecuniosity. However, an inability to pay is not a reason for the Court to refrain from making a costs order. I will order in each matter that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 April 2004
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