SZCIW v Minister for Immigration - [2004] FMCA 688

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCIW v MINISTER FOR IMMIGRATION

[2004] FMCA 688

MIGRATION – Application to review decision of Refugee Review Tribunal – whether any reasonable cause of action disclosed – summary dismissal.

Randhawa v MILGEA (1994) 52 FCR 437
General Steel Industries v Commissioner for Railways of New South Wales (1964), 112 CLR 125
SZBWF v MIMIA [2004] FMCA 83
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Craig v South Australia (1995) 184 CLR 163

Applicant:

SZCIW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ2925 of 2003

Delivered on:

17 August 2004

Delivered at:

Sydney

Hearing date:

17 August 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

That the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.
That the applicant pay the respondent's costs set in the amount of $2,800

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2925 of 2003

SZCIW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application made by the respondent on the 30 July 2004, seeking that the application filed by the applicant on 31 December 2003 be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.
The background to these proceedings is that the applicant, who is a citizen of Pakistan, arrived in Australia on 1 March 1998 on a student visa. He lodged an application for a protection visa on 3 July 2002, apparently after his student visa was either cancelled (according to the Tribunal) or refused (according to his migration agent).
On 6 August 2002 a delegate of the respondent refused the application for a protection visa. The applicant sought review by the Refugee Review Tribunal (the Tribunal). The Tribunal held a hearing, which the applicant attended. It handed down a decision on 9 December 2003 affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant sought review of the Tribunal decision in this Court on 31 December 2003. The application, which purports to be made under section 39B of the Judiciary Act, does not identify any grounds for review but merely the relief sought. As was pointed out on behalf of the respondent (the applicant for summary dismissal) while the application purports to rely on section 39B of the Judiciary Act, this Court has jurisdiction under section 483A of the Migration Act. No point is taken as to the jurisdiction of this Court to deal with proceedings on the same basis as the Federal Court pursuant to section 39B of the Judiciary Act. The respondent contends, however, that no reasonable cause of action is disclosed.
In addition to his application the applicant filed an affidavit which identifies the grounds relied on in connection with the application. Bearing in mind that the applicant is self-represented I have considered the affidavit in conjunction with the application in determining whether any reasonable cause of action is disclosed.
The affidavit states that the application is made because the applicant has a well founded fear of persecution “anywhere in Pakistan”. It states in paragraph 2(a):
(a)The grounds for my application are that the Refugee Review Tribunal's decision record abounds with references (Independent Evidence pages 7 to 10) admitting that the government of Pakistan has no jurisdiction in my area and that the country is blighted with rampant terrorism, violence in the streets, murder, kidnapping, summary assassinations and general lack of law and order in all parts of Pakistan. Yet the Tribunal negates its own evidence on the basis the Pakistan government and American task forces are addressing these problems. This does not mean that the problems have gone away and arguably exacerbates them.
(b)No consideration or weight was given to my evidence that persons who have spent a long time in western countries have been executed by those opposed to coalition countries.
The affidavit of the applicant continues in paragraph 3:
I therefore say that the Tribunal failed to act in accordance with natural justice and failed to take relevant consideration of my circumstances into account.
The applicant attended a directions hearing at which orders were made for the applicant to file any amended application setting out in full the grounds relied upon together with any affidavit material relied upon on or before 15 April 2004. I note the wording of that order. It was expressed as permissive rather than mandatory. On 15 April 2004 the applicant filed copies of relatively current newspapers and also of material from the internet. This material relates to the current situation in Pakistan. No amended application, written submissions or other explanation accompanied that material.
As is apparent from the affidavit of the solicitor with the carriage of the matter for the respondent, (Ms Nanson) sworn on 29 July and filed on 30 July 2004, the respondents wrote to the applicant on 31 May 2004, putting him on notice that an amended application had not been received, and that if an amended application setting out in full the legal grounds on which he relied was not filed and served by 14 June 2004, the respondent's solicitors were instructed to bring the matter before the Court seeking that the application be dismissed as disclosing no reasonable cause of action. No amended application was filed by the applicant, and the respondent filed an application on 30 July 2004 seeking summary dismissal. Written submissions of the respondent were also filed and the applicant had an opportunity to address those submissions in the hearing today.
In order to consider the contention that no reasonable cause of action is disclosed, it is necessary to have regard to the applicant's claims and the Tribunal decision in relation to those claims as well as the applicant's application and affidavit.
The essence of the applicant's claim was that he had lived in Australia for the past six years, and if he returned to his village situated in the Swat District of the North-Western Frontier Province (NWFP) of Pakistan, he would be imputed with an anti-Taliban or pro-West opinion and would be accused of being a spy.
The Tribunal accepted that the applicant was a national of Pakistan, and also, on the independent information before it, that the NWFP was more strictly Islamic and conservative than other parts of Pakistan and also that at times ideological ties with the Taliban were manifest in that province. However, the Tribunal also found that the applicant’s claims were very general. Apart from the fact that he had lived in Australia for the past six years he provided no other reason as to why he would come to the adverse attention of religious leaders and tribal people in his area. The Tribunal also had regard to the fact that the applicant was, as had emerged in the Tribunal hearing, a practising Muslim and did not claim to have any characteristics other than his absence from Pakistan which would contribute to him being singled out.
The Tribunal had regard to independent evidence, particularly that there were many Pakistani nationals from different provinces who travel to and reside in western countries for work or study purposes, and to the fact that it found no evidence in the sources consulted by it to suggest that Pakistani nationals, who return to Pakistan, generally and to the NWFP specifically, after a period in western countries, are the target of harm or harassment by religious leaders or pro-Taliban groups.
The Tribunal did not accept as well founded the applicant's fear of being singled out for harm on the basis of his residence in a western country for six years. It was of the view that his fears were far-fetched and that his chance of facing serious harm at the hands of religious leaders and Taliban sympathisers as claimed, for the reason of his imputed political opinion, or for any other Convention reason, was remote.
Moreover, the Tribunal considered that if the applicant was fearful of returning to NWFP it was reasonable for him to relocate to a different part of Pakistan. It had regard to the principles in relation to relocation set out by the Full Court of the Federal Court in Randhawa v MILGEA (1994) 52 FCR 437, see in particular Chief Justice Black at pages 440 to 441. It had regard to the fact that the applicant's fears were largely focused on the NWFP part of Pakistan. It stated that Pakistan is a large and populous country which is host to a diverse population with diverse views, and found that apart from stating that he did not feel safe anywhere in Pakistan, the applicant had not provided acceptable reasons as to why he was unable to relocate internally. The Tribunal found no evidence to suggest that returning Pakistani nationals were harassed or harmed for imputed pro-west views. It also had regard to the evidence of the applicant's youth, intelligence, education and adaptation to new environments (given his life and support in Australia over the past six years).
The Tribunal also addressed the applicant’s expressed concerns about the general instability and tension arising out of Pakistan's dispute with India over Kashmir. It acknowledged such concerns as understandable but found the applicant's fear of being possibly harmed if a war were to break out with India, to be highly speculative. The Tribunal was satisfied that the chance of him suffering harm in the reasonably foreseeable future as a consequence was remote.
The Tribunal specifically referred to the news items and reports provided by the applicant to the Tribunal in support of his application. It found that this material generally confirmed the independent evidence before it and did not add any value to this evidence. Overall, it concluded that it was satisfied that the applicant's fear of suffering serious harm in Pakistan, for reason of his imputed political opinion or any other Convention reason, was not well founded.
It is clear that the application to this Court, on its face, does not identify any ground of review, let alone a reasonable cause of action. The first ground raised by the applicant is in paragraph 2(a) of the affidavit. It merely takes issue with the Tribunal's factual findings on the basis of independent evidence in relation to the current situation in Pakistan, in particular, in the area from which the applicant came and the weight given to aspects of such evidence. However factual findings and the weight to be given to particular items of evidence are matters for the Tribunal (NAHI v MIMIA [2004] FCAFC 10). The material before the Tribunal referred to in the decision related not only to the position in Pakistan but also to the action of the government in fighting terrorism and other issues. The claim in paragraph 2(a) that government and US action does not mean the problems have gone away does not establish a reasonable cause of action. A disagreement with the Tribunal’s fact finding does not establish jurisdictional error.
The second ground in paragraph 2(b) is misconceived. The Tribunal reasons indicate it fully considered the applicant’s claims and evidence but found that the independent evidence did not support his claim of a well-founded fear of persecution. This ground effectively takes issue with the Tribunal’s factual findings.
In paragraph three of his affidavit the applicant appears to suggest that the factors in paragraphs 2(a) and 2(b) indicate that the Tribunal failed to act in accordance with natural justice or failed to take into account “relevant considerations of his circumstances”. No other particularisation of these claims is provided.
However the Tribunal’s assessment of the independent evidence does not establish that there is any arguable ground of a failure to act in accordance with natural justice. The bare assertion of a failure to act in accordance with natural justice does not, either alone or in conjunction with the applicant taking issue with the Tribunal factual findings and the weight given to particular material, establish any arguable case of a lack of natural justice. Nor is there anything else in the material before me to suggest any arguable claim of a lack of natural justice.
The claim in paragraph three that the Tribunal failed to take relevant considerations into account appears to be a reference to the contention in paragraph 2(b) hat no consideration or weight was given to his evidence that persons who have spent a long time in western countries have been executed by those opposed to coalition countries. However the Tribunal expressly found that there was no evidence in the sources consulted by it to suggest that Pakistani nationals who return to Pakistan generally, and NWFP specifically, after a period of residence in western countries are the target of harm or harassment by religious leaders or Taliban groups. It is apparent that the Tribunal fully considered and was aware of the applicant's claims. It rejected the applicant's claim of a well-founded fear of persecution on the basis that the independent information before it did not support that claim. Insofar as the applicant takes issue with the Tribunal factual findings or with the weight it gave to particular material this does not establish any reasonable cause of action. Furthermore, the Tribunal provided an alternative basis for its rejection of the applicant's claim, on the basis that if the applicant did have a subjective fear, then it was reasonable for him to relocate elsewhere in Pakistan.
The power of the Court to dismiss proceedings summarily is a power that should be exercised only in clear cases. I have borne in mind that the Court should be satisfied that the application should be such that there is no real question to be tried, that the case is clearly untenable and cannot possibly succeed or that it has no reasonable hope of success. (See General Steel Industries v Commissioner for Railways of New South Wales (1964), 112 CLR 125, and also the other cases cited in SZBWF v MIMIA [2004] FMCA 83).
I have also borne in mind that the question for the Court to decide is not whether the applicant could probably succeed in his action but whether the material before the court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail, and that it must be plain and obvious that the grounds for the application are unarguable, or that it is a hopeless case with no chance of success.
In this case I am satisfied that there is nothing in the material before me to indicate any basis to impugn the decision of the Tribunal. There is no substance to the grounds of review advanced in the applicant's affidavit and no arguable case of error, let alone a jurisdictional error, is apparent in the Tribunal findings or in its procedures on the material before me. There is nothing to support the claim that there is an arguable case of a denial of natural justice, or that the Tribunal failed to take into account relevant considerations in the sense considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, Craig v South Australia (1995) 184 CLR 163 and Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244.
In the hearing today, the applicant contended that he had put evidence before the Tribunal and also evidence before the Court. I take this to be a reference to the newspaper clippings about the situation in Bangladesh. However the Court does not have power to conduct a re-hearing. Its power is to determine whether or not there is a jurisdictional error in the Tribunal decision. There is no arguable case on the material before me before me that there is such a jurisdictional error. The existence of current material about the situation in Bangladesh does not assist the Court, either when read alone or when taken in conjunction with the applicant's affidavit and the other material before the Court.
I note also that the applicant did have an opportunity to file an amended application. He was put on notice that if he did not do so the respondent would seek summary dismissal. In response he provided newspaper clippings. These do not address the question of whether there is a reasonable cause of action disclosed in these proceedings.
Having considered all of the material before me, I am satisfied that the applicant’s case is doomed to fail. There is nothing in the material before me to suggest that the applicant would have any prospect on the basis claimed or any other basis, of establishing a jurisdictional error in the Tribunal decision or its procedures. The applicant's case is clearly untenable on the material before the Court. I am satisfied in the particular circumstances of this case that no reasonable cause of action is disclosed and that it is proper that the proceedings should be dismissed under Rule 13.10(a) of the Federal Magistrates Court Rules.

RECORDED : NOT TRANSCRIBED

The respondent has been successful in obtaining summary dismissal of these proceedings, which means that the applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal rule that the costs should follow the event. It is appropriate that the unsuccessful applicant should meet the costs of the respondent.
The applicant took issue with the merits of the decision against him. He also raised the question of how he should pay the costs. Insofar as he raises his impecuniosity, impecuniosity of itself is not a reason for not awarding costs. I consider that it is appropriate that the unsuccessful applicant should meet the respondent’s costs.
Bearing in mind the nature of this and other similar matters, I consider that the amount of $2,800 sought by the respondent is appropriate. It has been necessary for there to be a hearing of the summary application. The costs are somewhat less than would have been incurred had the matter gone to a final hearing.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: