SZBUF v Minister for Immigration
[2005] FMCA 179
•28 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUF v MINISTER FOR IMMIGRATION | [2005] FMCA 179 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application summarily dismissed as disclosing no reasonable basis for the relief sought. |
| Federal Court Rules Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.422B, 424A, 426A |
| Applicant A135/2002 v Minister for Immigration [2003] FCA 708 Applicant A163/2002 v Minister for Immigration [2003] FCA 677 |
| Applicant: | SZBUF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2318 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 28 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr P Reynolds Clayton Utz |
INTERLOCUTORY 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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2318 of 2003
| SZBUF |
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 3 February 2005. The Minister seeks the summary dismissal of an application for judicial review filed on 31 October 2003. The Minister seeks the summary dismissal of that application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the basis that the judicial review application discloses no reasonable basis for the relief sought. The Minister also seeks costs.
The Minister's application is supported by the affidavit of Patrick David Reynolds made on 1 February 2005 and filed on 3 February 2005. The Minister also relies on written submissions filed on 3 February 2005 that were augmented orally by Mr Reynolds today. The submissions and Mr Reynolds' affidavit were prepared on the basis of the original application for judicial review filed on 31 October 2003. An amended application was, however, filed on 19 May 2004. I treat that as the judicial review application before the Court. It was apparently not served on the Minister.
The background to these proceedings is set out in paragraphs 1 to 3.2 of the Minister's written submissions. I incorporate those paragraphs for the purposes of this judgment:
Chronology
DATE
EVENT
12 November 2002
Application for protection visa lodged.[1]
3 December 2002
Delegate of the Minister refused the grant of the protection visa.[2]
30 December 2002
Applicant applied for Refugee Review Tribunal ("RRT") review of delegate's decision.[3]
31 July 2003
RRT invited the applicant to hearing before it.[4]
9 September 2003
RRT receives fax signed by the applicant from the applicant's migration agent indicating that the applicant would attend the hearing.[5]
19 August 2003
Applicant's migration agent telephoned the RRT to confirm that the applicant would attend the hearing.[6]
15 September 2003
The applicant failed to attend the scheduled hearing before the RRT.[7]
9 October 2003
RRT handed down decision affirming the delegate’s decision.[8]
31 October 2003
Applicant applied to the Federal Magistrates Court of Australia for review of the RRT's decision.[9]
17 March 2004
Directions hearing before the Court. 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 20 May 2004.[10]
[1] Court Book filed on 27 April 2004 ("CB") at 1-41.
[2] CB 45-72.
[3] CB 73-76.
[4] CB 79-80.
[5] CB 81.
[6] CB 82.
[7] CB 94.3.
[8] CB 87-99.
[9] Annexure B of the affidavit of Patrick David Reynolds.
[10] Annexure C of the affidavit of Patrick David Reynolds.
Legislation
Rule 13.10 of the Federal Magistrates Court 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:
i)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
ii)the proceeding or claim for relief is frivolous or vexatious; or
iii)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 if:
a)the applicant's case is "so clearly untenable that it cannot possibly succeed";[11]
b)were the case to go to trial in the ordinary way, it is "apparent that [the application] must fail";[12]
c)one can say without doubt, on the whole of the material, that there is "no real question to be tried";[13]
d)the claim is "lacking in substance";[14] or
e)there is "no factual substratum to support the claim made".[15]
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.[16]
[11] General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236 at 129; SDAE v Minister for Immigration [2003] FCA 959 at [19].
[12] Webster v Lampard (1993) 177 CLR 598; see also Xie v Immigration Department[1999] FCA 365 at [20].
[13] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 10; Miller v Wertheim and Anor [2001] FMCA 103; Xie v Immigration Department[1999] FCA 365 at [20].
[14] Chung v University of Sydney [2001] FMCA 94 at [18] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186).
[15] Applicant A135/2002 v Minister for Immigration [2003] FCA 708 at [6]; see also Applicant A163/2002 v Minister for Immigration [2003] FCA 677 generally.
[16] 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.
Briefly, the applicant is from India and had made claims of religious persecution as a Muslim subject to communal violence in India. The applicant saw his application dismissed by a delegate of the Minister and sought review of that decision by the RRT. Although he indicated that he wished to attend a hearing before the RRT the applicant failed to attend. The presiding member deals with that matter on page 94 of the court book in the following terms:
On 31 July 2003 the Tribunal wrote to the Applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 15 September 2003. On 10 September 2003 the Applicant advised the Tribunal that he wanted to give oral evidence. However the Applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The amended application for judicial review filed on 19 May 2004 sets out the following grounds of review:
1.The Tribunal failed to exercise its jurisdiction under the Migration Act 1958 in that it failed to give the applicant particulars of information that it considered would be the reason, or a part of the reason, for affirming the decision that is under contrary to subsection 424A(1).
2.That the procedure required by law to be observed in connection with the making of the decision were not observed.
3.That the decision involved an error of law whether or not the error appears on the records of the decision.
4.The breach of the rules of natural justice occurred in connection with the making of the decision.
5.That the making of the decision was an improper exercise of the power conferred by enactment in pursuance of which it was purported to be made.
6.The decision was otherwise contrary to law.
None of these grounds is particularised. There is, in my view, no substance in any of these grounds in the absence of particulars or evidence. I note that a directions hearing was held on 17 March 2004 before Registrar Hedge. The applicant attended in person with the assistance of a Hindi interpreter. The applicant consented to orders which required him to file and serve any amended application and any evidence upon which he proposed to rely on or before 20 May 2004. While an amended application has been filed it suffers from the same vice as the original application in that all of the grounds are unparticularised. The applicant has not taken the opportunity given to him to file any evidence in support of his application.
On the face of the court book it appears to me that there was no breach of s.424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”). The RRT decision was based upon the information provided by the applicant and country information. In the circumstances I see no obligation on the RRT to give notice to the applicant pursuant to s.424A(1). Further, it is not apparent to me that any procedure required by law to be observed by the RRT was not observed. The RRT proceeded without a hearing pursuant to s.426A of the Migration Act as the applicant, although he indicated he wished to attend a hearing, failed to appear. In the circumstances, the RRT is permitted to proceed without a hearing although it might, in appropriate circumstances, adjourn to contact the applicant and to seek an explanation.
The Full Court decision in S58/2003 v Minister for Immigration [2004] FCAFC 283 and in particular from paragraph 25 is authority to show that there is no breach of procedural fairness in circumstances analogous to the present case. Mr Reynolds properly referred me to a contrary decision of Gray J in VSAF v Minister for Immigration [2004] FCA 1270. I understand that decision is subject to appeal. I do not have that decision available to me this morning and it is not clear whether s.422B applied in that case. Section 422B does apply in the present case.
In the absence of particulars and evidence there is no substance to the alleged breach of the rules of natural justice. Likewise, there is no substance to the generalised assertions of error of law for improper exercise of power. I find that the amended application discloses no reasonable basis for the relief sought. I will dismiss the application pursuant to rules 13.10(a) of the Federal Magistrates Court Rules.
The applicant was called three times including on the third occasion by name. He failed to appear. There was at the time no explanation for his non-appearance. Exhibit R1 shows that on 3 February 2005 the Minister's lawyers wrote to the applicant at his address for service providing him with a copy of the Minister's interlocutory application, the affidavit of Mr Reynolds in support of it and the Minister's outline of submissions. The applicant was advised to attend court today at 10.15 am. Non-appearance of the applicant would have been reason enough for the dismissal of his judicial review application, however, I elected to consider, in his absence, the Minister's application for summary dismissal.
The applicant appeared as I was completing my oral judgment and asked to be heard. Having heard the applicant and considered his submissions I confirmed the order that I had already made to dismiss the application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules. Because the applicant arrived late and did not have the benefit of hearing my earlier oral reasons I undertook to produce written reasons. I informed the applicant that he had 21 days from 28 February 2005 to appeal against my orders to the Federal Court.
On the question of costs, the application having been dismissed, costs should follow the event. Mr Reynolds has sought an order for costs fixed in the sum of $3,750. Having regard to the work undertaken on behalf of the Minister I am satisfied that when assessed on a party and party basis costs of at least $3,000 have been properly and reasonably incurred on behalf of the Minister.
The applicant queried why he was required to pay costs. When I explained the circumstances to him he did not wish to be heard further. 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 thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 March 2005
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