SZCIX v Minister for Immigration - [2004] FMCA 367

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCIX & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 367

MIGRATION – Review of RRT decision – application by Respondent Minister for summary dismissal – whether the application for protection visa discloses a reasonable cause of action – where applicants claim well-founded fear of persecution for convention reason of political opinion – where applicants failed to particularise their claims – whether findings and reasons of the Tribunal evidences denial of procedural fairness or jurisdictional error – whether application is untenable and incapable of success.

SCAA v MIMIA [2002] FCA 668
Applicant A135/2002 v MIMIA [2003] FCA 708
Applicant 163/2002 v MIMIA [2003] FCA 677
Xie v Immigration Department [1999] FCA 365
Fancourt v Mercantile Credits Limited (1963) 154 CLR 87
SZBWF v The Minister [2004] FMCA 83

First Applicant:

SZCIX

Second Applicant:

SZCIY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 2927 of 2003

Delivered on:

4 June 2004

Delivered at:

Sydney

Hearing date:

4 June 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Solicitors for the Respondent:

Ms A Houlton

ORDERS

Substantive application dismissed.
The applicants to pay the respondents costs assessed in the sum of $1,200 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2927 of 2003

SZCIX

First Applicant

SZCIY

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have before me today a notice of motion issued on the part of the respondent seeking orders that the application for judicial review filed on 24 October 2003 be dismissed on the grounds that pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules the application fails to disclose a reasonable cause of action. I will say straight away that I am unaware of any application for judicial review filed on

24 October 2003. I am however aware of one filed on 31 December in that year relating to a decision notified to the applicants on 4 December in that year.
The application which was filed on 31 December 2003 seeks the usual orders setting aside the decision of the Refugee Review Tribunal which was made on 13 November 2003 and handed down on 4 December 2003. The decision is in respect of a review of a decision of the Minister's delegate who declined, on 10 March 2003, to grant the applicant and his wife protection (class XA) visas that they had applied for on 2 December 2002.
The grounds upon which the applicants sought asylum in Australia was because of an assertion that they had a well founded fear of persecution for the Convention reason of political opinion. It would appear that the applicant claims membership of the BJP Party in his home state of Gujarat and that he was approached by police and taken to a local Magistrate. He stated that because of lack of evidence he could not be kept in custody and was released the next day. He stated that after this incident the police came to his house frequently and threatened him. He was required to pay bribes to the police and in late July 2002 moved to New Delhi.
On 25 September 2003 the Tribunal wrote to the applicant informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant was invited to a hearing. He appears at that time to have had a migration agent. The applicant declined the opportunity to attend a hearing and therefore the Tribunal proceeded in accordance with the provisions of section 426A(1) of the Migration Act to make a decision on the papers alone.
In its findings and reasons found at [CB 104] the Tribunal says:
"The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the main Applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted on his return to India. On the very limited, vague and unreliable evidence available, the Tribunal cannot be satisfied about the Applicant's claim that he was associated with the BJP. Nor can the Tribunal be satisfied on the basis of the limited information before it that the applicant faced harm by reason of his political opinion and that this harm could be characterised as persecution in the terms set out above on page 3 of this decision.
The Tribunal notes that the Applicant's claims as set out in folio 57 - 59 of the Department file that he left his village in July 2002 following harassment from the police and eventually moved to Delhi to hide do not accord with the details of his passport which indicate that he travelled to Thailand in June 2001. The Tribunal would have wished to explore with the applicant this apparent discrepancy."
The grounds of application upon which the applicant relies are six-fold. He states first, "The Tribunal made his decision in bad faith". Allegations of bad faith are required to be particularised under Order 54B rule 2 of the Federal Court Rules. This allegation was not so particularised. In SCAA v MIMIA [2002] FCA 668 Von Doussa J said at [38]:
"In my opinion it will be a rare and exceptional case where actual basis can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process and if the decision is against the party complaining the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision."
The second ground is, "The Tribunal denied the evidentiary proof of my claim". To the extent that this may mean that the Tribunal did not accept the evidence put forward by the applicant he has only himself to blame. He was offered the opportunity to attend before the Tribunal and explain his position but he did not do so. He told me today that he had recently had a baby and that was why both he and his wife could not attend. However, that was never raised with the Tribunal and no adjournment was sought.
The third ground is “The Tribunal deprived me of natural justice.” The Tribunal acted in accordance with its statutory powers in the manner in which it dealt with the review of the delegate's decision. It invited the applicant to attend the hearing and the applicant declined. It cannot be said that nature justice was not provided in the absence of any further particularisation.
The fourth ground was “The Tribunal mixed up many facts with this decision which affected the decision.” The applicant was given an opportunity to provide particulars of this and the other grounds. Indeed, he was ordered to provide those particulars but he has declined to do so. In the absence of any particulars it is not appropriate for this court to guess what facts may have been mixed up or what the applicant really meant by this complex phraseology. As it stands it presents as a ground without meaning.
The fifth ground was “The Tribunal has given a decision which was preset in the back of its mind.” This is the allegation of bad faith with which I have already dealt. It is unfortunate that this is the third time today that I have come across this phraseology, indeed the phraseology used throughout this document. Whilst I would not like it to be thought that each ground of appeal in each separate case are not individually considered by the court it is distressing to see the use of pro forma grounds to which applicants have no individual input.
The final ground was “The Tribunal's decision did not reflect the material facts of my claim.” Once again there is no particularisation of what facts are referred to. But having looked through the court book it would seem to me that the very facts that the applicant submitted to the delegate and in his written statements found at [CB 70] – [CB 72] were all considered.
It has been said that an order for summary dismissal should only be made where the claim is clearly untenable and cannot proceed: Applicant A135/2002 v MIMIA [2003] FCA 708; Applicant 163/2002 v MIMIA [2003] FCA 677 and Xie v Immigration Department [1999] FCA 365 at [20] per Carr J, or where it is clear there is really no question to be tried Fancourt v Mercantile Credits Limited (1963) 154 CLR 87 at [99]. The test is not one as to whether the applicant would 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: SZBWF v The Minister [2004] FMCA 83 at [25].
It seems to me on any test this cause is untenable and cannot succeed. I have discussed each of the six grounds of the applicant's claim. I have noted that the applicant has had opportunities in which to improve his situation but has not availed himself of them.
I further note that when this matter came before the Registrar where the applicant attended it was made quite clear that the notice of motion which is presently before me was likely to be heard today. In other words, the applicant was on clear notice that unless he complied with the orders of the court to serve an amended and fully particularised application the events which have occurred today would come to pass.
I am satisfied that this is an appropriate case for an order dismissing the proceedings pursuant to Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules. I would add that I believe it is an appropriate case for dismissal in accordance with Part 13 Rule 13.03(2)(b) of those rules. I dismiss the substantive application. I order that the applicant pay the respondent's costs which I assess in the sum of $1200 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules..
For the avoidance of doubt I should make it clear that this decision refers both to the applicant who has appeared before me today, SZCIX and his wife, SZCIY.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 11 June 2004