SZCFL v Minister for Immigration

[2005] FMCA 1495

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCFL v MINISTER FOR IMMIGRATION [2005] FMCA 1495

MIGRATION – Summary dismissal – whether no reasonable cause of action disclosed.

Migration Act 1958, s.424A
Federal Magistrates Court Rules 2001, R. 13.10(a)

NBJE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 565
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
SZBOD vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 719
SAAP vMinister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27

Applicant: SZCFL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2787 of 2003

Judgment of: Barnes FM

Hearing date: 6 October 2005

Delivered at: Sydney

Delivered on: 6 October 2005

REPRESENTATION

Applicant: Applicant in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the notice of motion is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2787 of 2003

SZCFL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is a notice of motion filed by the respondent seeking that proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action. While the Court has power to order that proceedings be dismissed if no reasonable cause of action is disclosed in the application, as stated in NBJE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 565 it must be plain and obvious that the grounds are unarguable or that the applicant’s case is so clearly untenable that it cannot possibly succeed so that one can say without doubt on the whole of the material that there is no real question to be tried. See NBJE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 565 at [10] and [11] in relation to the general principles applicable to dismissal for no reasonable cause of action.

2. I am not however persuaded that these proceedings should be dismissed pursuant to Rule 13.10(a). In an amended application filed on 5 July 2004 the applicant relied on two grounds: first that the Tribunal used improper methods in assessing her claims and secondly that it failed to assess her claims as a member of a particular social group of ‘whistle-blowers’.

3. As Allsop J has said on a number of occasions, notably in NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [60] and SZBOD vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 719 at [13], if an application asserts a formulated ground which in terms amounts to an assertion of a recognised head of jurisdictional error that may be sufficient to avoid the operation of Rule 13.10(a) or its Federal Court Rule equivalent. Ground two asserts a recognised head of jurisdictional error.

4. In relation to ground one I have also had regard to the recent line of authority following the High Court decision in SAAP vMinister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 in conjunction with the decision in Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 in relation to the scope of s.424A of the Migration Act 1958 where a Tribunal relies on discrepancies between claims made by an applicant in a protection visa application and claims made to the Tribunal.  The applicant is self-represented and claims that the Tribunal used ‘improper methods’ and ‘incorrect methods’ leading it to a wrong decision I consider that such ground may be said to raise such an issue bearing in mind the Tribunal findings.  Both the application and the amended application were filed before the decision in SAAP.  The Court has not yet had the benefit of the applicant’s submissions in relation to the grounds.  However it cannot be said that there is no reasonable cause of action disclosed in light of such matters. 

5. I consider that this is a not a case in which it has been established that the application should be dismissed summarily pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.

6. Accordingly the notice of motion filed on 18 April 2005 should be dismissed.  The final hearing of the application for review of the Tribunal decision will proceed on 16 February 2006 at 2.15pm.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  27 October 2005.