SZBUD v Minister for Immigration
[2005] FMCA 24
•17 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUD & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 24 |
| MIGRATION – Review of Refugee Review Tribunal decision – application by the Minister for summary dismissal – no reasonable cause of action disclosed. |
Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)
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
NAVX v Minister for Immigration [2004] FCA 346
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
First Applicant: Second Applicant: | SZBUD SZBUE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2317 of 2003 |
| Delivered on: | 17 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 January 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The first applicant appeared in person
| Solicitors for the Respondent: | Mr P Reynolds Clayton Utz |
INTERLOCUTORY ORDERS
The application for judicial review is dismissed.
The applicants are 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 |
SYG2317 of 2003
| SZBUD |
First Applicant
SZBUE
Second 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 for the summary dismissal of a judicial review application. The Minister's application was filed on 23 November 2004 in relation to a judicial review application filed on 31 October 2003. That application sought judicial review of a decision of the Refugee Review Tribunal (“the RRT”) made on 26 September 2003 and handed down on 22 October 2003.
The Minister asserts that the judicial review application discloses no cause of action, is frivolous or vexatious and an abuse of process of the Court. The Minister's application is supported by an affidavit by Patrick David Reynolds made on 19 November 2004 and filed on 23 November 2004. I also received written submissions from both parties. The Minister's submissions were filed on 11 January 2005. The applicant's submissions were filed in court by leave this afternoon.
Only the first applicant attended court this afternoon. He told me that his submissions were prepared with the assistance of a friend. They are remarkably similar to submissions prepared in a matter I heard earlier this afternoon. On the other hand, so are the respondent Minister's submissions.
The judicial review application sets out seven grounds of review. Those grounds are grounds which, if particularised, would probably call for a hearing. However, none of the grounds have been particularised. Neither has any evidence been presented in order to support them. The court book which I do have before me does not support them.
The applicants attended a directions hearing on 17 March 2004 in this matter before Registrar Hedge. They consented to an order that they file and serve any amended application and any evidence upon which they proposed to rely by 28 May 2004. They have not taken advantage of that opportunity. The first applicant told me this afternoon that he could produce material in support of his application if he were given a few more weeks. However, the applicants have already had a sufficient opportunity to substantiate their application.
I agree with, and adopt, paragraphs 1 - 4.5 of the Minister's written submissions for the purposes of this judgment:
Chronology
DATE
EVENT
30 September 2002
Application for Protection Visa lodged.[1]
18 February 2003
Delegate of the Minister refuses the grant of the Protection Visa.[2]
25 February 2003
Applicant applies for RRT review of delegate's decision.[3]
11 August 2003
RRT invites Applicant to hearing before it.[4]
26 August 2003
RRT receives fax from the Applicant indicating that the Applicant did not wish to attend the hearing.[5]
22 October 2003
RRT hands down decision affirming Delegate’s decision.[6]
31 October 2003
Applicant applies to the Federal Magistrates Court of Australia for review of the RRT's decision.[7]
17 March 2004
Directions hearing before the Court. The Court ordered, inter alia, that the Applicants file and serve any amended application and evidence upon which she proposes to rely on or by 28 May 2004.[8]
[1] Court Book filed on 27 April 2004 ("CB") at 1-46.
[2] CB 51-62.
[3] CB 63-66.
[4] CB 69-70.
[5] CB 71.
[6] CB 76-86.
[7] Annexure A of the affidavit of Patrick David Reynolds filed on 23 November 2004.
[8] Annexure B of the affidavit of Patrick David Reynolds filed on 23 November 2004.
Legislation
Rule 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."
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.
Order 20 Rule 2 of the Federal Court Rules ("FC 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)."
Order 54B Rule 5 of the FC 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.
Accordingly 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
The 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";[9]
[9] 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";[10]
[10] 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;[11] or
[11] 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.[12]
[12] Applicant A135/2002 v Minister for Immigration [2003] FCA 708; Applicant A163/2002 v Minister for Immigration[2003] FCA 677.
Where 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.[13]
[13] 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
For the reasons identified below, the [Minister] submits each of the following in the alternative:
(a)the case of the Applicants 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.
The Applicants' claims are set out in the application filed on 31 October 2003. Each of the grounds are dealt with below:
(a)Ground 1: "That the decision involved a jurisdictional error of law being an error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Refugee Review Tribunal"
The Applicants have not particularised the "applicable law" which they complain was misinterpreted by the RRT in an unspecified fashion to an extent constituting jurisdictional error, nor is there any such error on the face of the material before the Court. This ground of review therefore must fail and no reasonable basis for the application has been disclosed.
(b)Ground 2: "That the Tribunal decision was unjust and was made without taking into account the full gravity of the Applicants' circumstances and the consequences of the claim"
This ground of review does not identify any facts capable of constituting jurisdictional error. It impermissibly invites the Court to undertake merits review. It is obvious that it must fail.
(c)Ground 3: "The Tribunal member refused to accept that the applicants have a well-founded fear of persecution on convention reasons"
This ground of review does not identify any facts capable of constituting jurisdictional error. It impermissibly invites the Court to undertake merits review. Whether the Applicants have a well-founded fear of persecution for a convention based reason is a factual issue for the RRT to determine. It is obvious that this ground must fail.
(d)Ground 4: "The Tribunal failed to take a relevant consideration into account in exercising its power. The applicant were deprived to attain natural justice"
The Applicants have not particularised the relevant consideration the RRT failed to take into account and has not particularised the manner in which they were deprived of natural justice. Further, on the face of the material before the Court there is no ascertainable basis for either complaint. Accordingly, there is no reasonable basis for this complaint.
(e)Ground 5: "That the Applicants were denied procedural fairness in connection with the making of the decision"
The Applicants have not particularised the manner in which they were denied procedural fairness and on the face of the material before the Court there is no ascertainable basis for this complaint. The Applicants were provided with an opportunity to attend a hearing before to RRT.[14] The Applicant received this invitation but elected not to attend.[15] It is obvious that this ground of review must fail.
(f)Ground 6: "That procedures that were required by law to be observed in connection with the making of the decision were not observed"
The Applicants have not particularised the procedures that the RRT failed to observe and on the face of the material before the Court there is no ascertainable basis for this complaint. The submissions concerning the Applicants' non-attendance referred to in sub-paragraph (e) above are equally applicable to this ground of review. This ground of review clearly must fail.
(g)Ground 7: "That the decision was otherwise contrary to law"
The Applicants have not particularised how the RRT's decision was contrary to law and on the face of the material before the Court there is no ascertainable basis for this complaint. It is obvious that this ground of review must fail.
The [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 Applicants' claims and that they would have access to effective state protection - a conclusion which is unsurprising given the Applicants' election to not attend the hearing to which they were invited.[16]
It is also to be noted that the Applicants also elected not to file any amended application or evidence upon which he proposes to rely despite the order of the Court on 17 February 2004 that allowed them to do so on or by 28 May 2004.
Accordingly, it is respectfully submitted that no reasonable basis for the application has been disclosed and the proceedings should be dismissed with costs.
[14] CB 69-70.
[15] CB 71.
[16] 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]
I have myself considered the material in the court book. The applicants failed before the RRT because they did not put before the RRT sufficient material to substantiate their protection visa claims. They were invited to a hearing before the RRT but declined that invitation. There is no substance to the grounds set out in the judicial review application either on its face or as illuminated by the applicants’ written submissions.
I will dismiss that application as disclosing no reasonable cause of action.
On the question of costs, Mr Reynolds seeks an order fixed in the sum of $3,000. I agree that costs of that amount have been reasonably and properly incurred on behalf of the Minister to this point. The applicant did not oppose an order for costs in principle but indicated that he may need to pay by instalments. That is a matter that can be discussed with the Minister's Department or her legal representatives.
I will order that the applicants pay the Minister's costs and disbursements of and incidental to the judicial review 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
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