SZCKN v Minister for Immigration - [2005] FMCA 228

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCKN v MINISTER FOR IMMIGRATION

[2005] FMCA 228

MIGRATION – Application to review decision of Refugee Review Tribunal – no reasonable cause of action – summary dismissal.

General Steel Industries Incorporated v Commissioner for Railways New South Wales (1964) 112 CLR 236
Webster v Lampart (1993) 177 CLR 598
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83
Chung v University of Sydney [2001] FMCA 94
Chung v The University of Sydney [2002] FCA 186
A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 238
VGAO of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 68

Applicant:

SZCKN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 42 of 2004

Delivered on:

16 February 2005

Delivered at:

Sydney

Hearing date:

16 February 2005

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application for review of a decision of the Refugee Review Tribunal be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.
That the applicant pay the respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 42 of 2004

SZCKN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an interim application filed by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, in proceedings that were commenced by the applicant on 7 January 2004. The applicant sought review of a decision of the Refugee Review Tribunal handed down on 10 December 2003 affirming a decision of a delegate of the respondent not to grant him a protection visa.
In his application of 9 January 2004 the applicant relied on nine unparticularised and very general grounds. He stated in ground 10 that more details would be provided. At a directions hearing on 26 March 2004 the applicant was ordered to file and serve any amended application and any evidence upon which he proposed to rely on or before 14 May 2004. That did not occur. However he filed an amended application on 10 August 2004. For reasons which are not clear he also filed what he agreed in oral submissions was a duplicate of that amended application on 3 November 2004. The amended application filed on 10 August and that filed on 3 November are in identical terms. I asked the applicant to point to any difference between these documents and he was unable to do so. He acknowledged that they were the same.
On 7 December 2004 the respondent filed the interim application that is presently before the court in which it is sought that the application be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules. A number of bases are relied on in the interim application but in oral submissions the legal representative for the respondent clarified that the only ground relied upon was that no reasonable cause of action was disclosed in relation to the proceeding or claim for relief.
The interim application refers to the amended application filed on 10 August 2004. The application of 3 November 2004 is in identical terms and in those circumstances nothing turns on the fact that there is a later application. Any orders that I make in relation to the amended application of 10 August 2004 must of necessity apply to the duplicate that was filed on 3 November 2004. It is not a further amended application in the sense of incorporating any changes in the grounds relied upon by the applicant.
The amended application relies on the following grounds:
That the RRT decision was effected [sic] to take into account a relevant consideration when it assessed the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars:
(a)The Tribunal to consider in assessing the chance of the applicant being arrested and/or persecuted on his return to Bangladesh based on the fact he was a member of particular social group and political activist in Bangladesh;
(b)The Tribunal's satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
Particulars:
The applicant repeats the particulars to grounds
I will provide more details after received advice from pilot scheme barrister.
No further details were provided in the duplicate of the amended application filed in November 2004. The applicant filed a document described as written objection against the respondent’s application.
The court has power under Rule 13.10(a) of the Federal Magistrates Court Rules to order that proceedings be stayed or dismissed if it appears to the court that no reasonable cause of action is disclosed in relation to the proceedings or claim for relief. No reasonable cause of action or basis for an application will be disclosed where the case of the applicant is so clearly untenable that it cannot possibly succeed: General Steel Industries Incorporated v Commissioner for Railways New South Wales (1964) 112 CLR 236. The question the court must decide is not whether 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: Webster v Lampart (1993) 177 CLR 598, SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83.
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, that one can say, without doubt, on the whole of the material that there is no real question to be tried. The applicant in this instance is unrepresented. In considering whether or not to exercise my discretion to summarily dismiss his application on the ground that no reasonable basis for the application is disclosed, I have taken into account the grounds in the amended application, what the applicant said in his objection and oral submissions and have also considered whether an arguable case based on the material could be made out: Chung v University of Sydney [2001] FMCA 94 at [7]-[14] upheld on appeal by the Federal Court in Chung v The University of Sydney [2002] FCA 186.
In this instance the amended application commences with a general ground. As expressed, it is misconceived. It is not for the Tribunal to assess whether the delegate raised reasonable grounds for not granting a protection visa as the Tribunal proceeds by way of a re-hearing. However, it may be that the applicant intended to contend that the Tribunal failed to take into account relevant considerations. I have considered whether there is an arguable case that the Tribunal failed in any way to take into account relevant considerations or that it took into account irrelevant considerations, not only on the bases set out in the particulars following the claim but also on the basis of all the material before me. It is necessary to refer first to the Tribunal reasons for decision.
The Tribunal accepted the applicant's claim to be a Buddhist from Bangladesh. It accepted that he had been a monk in Bangladesh for a time until he came to Australia in May 2003. Despite some inconsistencies it also accepted his evidence of extensive travel to countries other than Bangladesh after he obtained his passport in July 2000.
In the Tribunal reasons for decision it set out the claims that the applicant made in his protection visa application. These centred around a claim to fear persecution from Muslim groups on the basis of his Buddhist religion and on the basis that he was suspected of being involved in the killing of a person named Kashem. He claimed to fear persecution at the hands of the police or Muslim groups. He also complained generally about the treatment of minority groups by radicals and Muslim groups. The Tribunal also outlined the claims made to the Tribunal and the documents provided to the Tribunal by way of supplementary submissions, including a First Information Report dated 16 May 2001. It outlined his claim that a case that had been lodged against him and that Buddhists in Bangladesh were subject to systematic persecution.
The Tribunal also set out at length the claims the applicant made at the hearing. It is apparent from the Tribunal reasons for decision that it put to the applicant key elements of independent information.
In the findings and reasons part of its decision the Tribunal dealt with each of the elements of the applicant's claims to fear persecution. It accepted that he had experienced some limited discrimination in his youth as a member of the Buddhist community and of a minority group, but on the claims made was not able to satisfy itself that this was serious harm amounting to persecution for a Convention reason. On the basis of country information it did not accept his claims that the circumstances indicated that Buddhists in Bangladesh were subjected to systematic persecution. It was not satisfied that there was a real chance that he would experience serious harm amounting to persecution on this basis in Bangladesh.
The Tribunal also had regard to the applicant’s claim to fear persecution on the basis of a suspected involvement in the killing of Kashem and his general claim about mistreatment of minority groups. It addressed his claim that he had been subjected to a charge of conspiracy and terrorism and charged with the offence of “having with common intension (sic) by making obstruction in discharging public duty, gun firing with attempt to murder and making serious wound the police persons and forcibly taking away the accused from police custody” referred to in the First Information Report. It did not accept these claims, noting that they were very serious yet the applicant had been able to get a valid passport in his own name with his correct date of birth and had travelled extensively, leaving Bangladesh seven times and returning on six occasions in the 18 months after he was allegedly charged. He had not come to the notice of the authorities. He had not been arrested. He had not felt it necessary or been required to pay a bribe. Nor had he even been questioned about such serious matters.
The Tribunal went on to find in relation to the false charges that if such charges had been laid against the applicant, the police would have a legitimate reason to look for and interview him. On the basis of country information about the independence of courts in Bangladesh which had been brought to the attention of the applicant in the Tribunal hearing, the Tribunal found that protection would be available to the applicant if he had been falsely charged and that he could seek legal redress from the courts in Bangladesh.
The Tribunal did not accept the applicant’s claim that his life was not safe from Kashem's relatives, supporters or Muslim terrorists who claimed he murdered two people in May 2000. It was satisfied that if he had a fear for his life or safety for any reason whatsoever (Convention reason or otherwise) he would not have returned to Bangladesh from overseas on some six occasions. Moreover he had not applied for refugee status in any of these countries, including the Philippines which is a party to the Refugees Convention.
On that basis the Tribunal did not accept these claims or the related claims such that the applicant would not receive protection or safety in Bangladesh, people would look for him and kill him, or if he lived elsewhere in Bangladesh he may be safe for a month or two but they would come to know who he was and there was no possibility he would survive in Bangladesh and he would be ‘finished off’.
From a consideration of the applicant's claims as presented in the material before me and the Tribunal reasons for decision, it is apparent that on its face the Tribunal dealt with each element of the applicant's claims and that there is no arguable basis for a claim that it failed to take into account relevant considerations. (See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and also see Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 and Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196).
The applicant appears to claim in the first particular in his amended application that the Tribunal failed to consider the chance of his being persecuted by reason of his membership of a particular social group or his political activism. The applicant's claims were not expressed in terms of political opinion or membership of a particular social group. Nonetheless, however expressed, the Tribunal addressed and made findings on each of the claims raised by the applicant. It considered and rejected his claim to fear persecution by reason of his religion, by reason of false charges laid against him and for all the other reasons that he put to the Tribunal. Moreover it found that he had not subjective fear for any reason (Convention or otherwise). There are no particulars to this ground beyond the general statement in the amended application. The court's attention has not been drawn to any part of the applicant's claims that go beyond those considered by the Tribunal. On the material before me there is no arguable case that the Tribunal fell into error in the manner contended in particular (a), either as a particular of ground 1 or as a separate ground itself. As expressed the ground must fail.
The second particular, whether considered as a particular or as a ground, is that the Tribunal’s satisfaction was not based upon reasoning which provided a rational or logical foundation for its belief. There is no particularisation. There is no basis for the claim that the Tribunal's finding that the applicant was not a refugee was irrational or illogical. The Tribunal gave reasons for its findings which were open to it on the material before it. Irrational and illogical reasoning is not made out by virtue only of a disagreement with findings. It is for the Tribunal to decide the merits of the matter and unpersuasive reasoning does not amount to an error of law, A v MIMA [2002] FCAFC 238 and VGAO of 2002 v MIMA [2003] FCAFC 68. Again, there is no arguable basis for this ground and it has no prospects of success. The claim in the amended application that the applicant will provide more details after receiving advice does not provide a basis for review of the Tribunal decision.
In the written objection to the respondent's interim application, the applicant set out the fact that he had filed an amended application. The focus of his concern appears to be that he considers that as he has filed an amended application, the matter must proceed to a final hearing. It appears that he is of this view because the matter was listed in a non-compliance list and then withdrawn once the amended application was filed. He annexed to his objection a copy of a letter from the respondent's solicitors notifying him that as he had filed an amended application the matter was to be removed from the non-compliance list. However, as I explained to the applicant and as he appears to have understood, the proceedings today are an interim application seeking summary dismissal on the basis that no reasonable cause of action is disclosed in his amended application. His written objection merely states that all reasonable cause, ground and relief have been disclosed in the amended application. It does not elaborate further.
In oral submissions today the applicant took issue with the merits of the Tribunal decision. Merits review is not available in this court and would not provide an arguable ground for review. He also claimed that the Tribunal did not do him justice. However his reasons for this claim amounted to a disagreement with the Tribunal conclusion that he was not a refugee and with the weight placed on the fact that had not sought refugee status in the countries he had visited. Such a disagreement with the merits of the Tribunal decision does not establish any arguable case of a lack of procedural fairness or a denial of natural justice.
The applicant also claimed, without elaboration, that he submitted documents in support of his claims. He did submit a First Information Report and also other documentation in support of his claims as well as independent information in relation to the situation in Bangladesh. It is not clear what the nature of the possible jurisdictional error being suggested was in relation to the documents submitted. However, on the material before me there is nothing to suggest that there is an arguable case that the Tribunal denied the applicant procedural fairness in the manner in which it went about its task or in its reasons for decision. Insofar as the complaint relates to the weight given by the Tribunal to particular documents, that is a matter for the Tribunal. It is not necessary for the Tribunal to refer to every item of evidence. It considered and addressed his claims including the very serious claim that false charges had been laid against him. It provided several bases for its reasoning in relation to this issue. First it did not accept the claims and second, even if false charges had been laid against the applicant it found that effective state protection was available if he had been falsely charged. Further based on the applicant’s movements and conduct it did not accept that he had a subjective fear of persecution. It is also apparent from the Tribunal reasons for decision that the Tribunal put to the applicant relevant aspects of independent information during the course of the Tribunal hearing. No arguable lack of procedural fairness is apparent.
Having considered all of the material before me I am satisfied that no reasonable cause of action or basis for the application is disclosed in the present case. It is apparent that the applicant’s action must fail. Accordingly, the application should be dismissed pursuant to Rule 13.10(a) as sought by the respondent.

RECORDED : NOT TRANSCRIBED

The respondent has succeeded in the interim application and seeks that the applicant pay costs in the sum of $5,000. There is nothing in the circumstances of this case to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. However I have had regard to the nature of this case. Because the application has been dismissed on a summary basis the costs associated with a final hearing have not been incurred. Nor have the expenses of counsel been incurred. Written submissions and oral submissions have been prepared for the respondent. I consider that the amount sought is somewhat excessive considering the amount usually ordered in matters of this nature. In all the circumstances of this case and having regard to similar matters I consider that the amount of $3,500 is appropriate.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 10 March 2005