SZEUC v Minister for Immigration
[2005] FMCA 135
•8 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUC v MINISTER FOR IMMIGRATION | [2005] FMCA 135 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant failed to comply with orders of Registrar concerning filing of amended application – no arguable case of jurisdictional error on part of Refugee Review Tribunal – application dismissed. |
Federal Magistrates Act 1999 (Cth), ss.14, 15
Federal Magistrates Court Rules 2001 (Cth), r.13.10
Federal Court Rules, Order 20 r.2, Order 54B r.2 and 5
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83
SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959
Webster v Lampard (1993) 177 CLR 598
Xie v Immigration Department [1999] FCA 365
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs
Applicant A175/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 829
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Miller v Wertheim & Anor [2001] FMCA 103
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Chung v University of Sydney [2001] FMCA 94
Yo Han Chungv University of Sydney [2002] FCA 186
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
| Applicant: | SZEUC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1798 of 2004 |
| Delivered on: | 8 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a friend who acted as an interpreter.
| Solicitors for the Respondent: | Mr D Sim of Clayton Utz |
ORDERS
The respondent’s application is upheld.
The substantive application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1798 of 2004
| SZEUC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter was brought before the Court as a Notice of Motion seeking that the matter be dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth). Both parties have filed written submissions in response to this matter being listed for hearing the Motion. A Court Book has also been prepared, filed and served.
As the substantive hearing in this matter has been listed for 13 April 2005 and there are serious deficiencies in the pleadings in that orders to file amended pleadings have not been complied with, I believe it is in both parties’ interest to know with some certainty the future progress of this matter. Consequently, I made orders at the completion of the hearing and indicated I would publish my written reasons for those orders.
The proceedings
By application filed on 24 December 2004 the respondent moves the Court for orders that the proceedings be dismissed pursuant to the jurisdiction conferred by ss.14 and 15 of the Federal Magistrates Act 1999 (Cth). The application filed by the respondent claims the following grounds for dismissal:
a)An order that the applicant’s application filed on 10 June 2004 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the basis that no reasonable cause of action is disclosed.
b)
Further or in the alternative, an order that the applicant’s application filed on 10 June 2004 be dismissed pursuant to Rule 13.03(2)(b) of the Rules on the basis that the applicant, in default of the orders made by Registrar McIllhatton on 17 September 2004, has failed to file and serve an amended application by
24 September 2004.
For the purpose of this application the respondent tendered and applied for an affidavit of Bridie Catherine Rushton sworn on 23 December 2004 (“the affidavit of Ms Rushton”) to be admitted into evidence.
A Court Book (“CB”) prepared by the respondent solicitors was filed and served on 30 September 2004.
Applicant’s background
The applicant, who claims to be a citizen of India, arrived in Australia on 22 August 2003. On 19 September 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 15 December 2003 the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant a protection visa and on
7 January 2004 the applicant applied for a review of the delegate’s decision.
The applicant claimed to have been born in India on 12 July 1977. His ethnicity is Gujarati and his religion is Hindu. The applicant claimed he left India “due to fear of being persecuted by the hands of Muslim extremists and Mafia groups because of his active participation and membership of the Shiv Sena Party headed by its chief, Bal Thakrey, which is affiliated with the Bharatiya Jarata Party (“BJP”) and works at safe guarding the interests of Hindus of the nation. The applicant claimed he was always interested in politics and decided to take it up full-time after completing Year 10 schooling, so joined the BJP youth wing and “soon was elected as the secretary of the BJP youth wing of the Mehsana District, Gujarat and was “attacked by extremists of opposite political groups such as Congress and Muslim organisations” and beaten up severely as well as being threatened to give up all his political activities and leave his village. The applicant claimed that these attacks terrified him so he decided to move to Mumbai. He claimed that his father died in “mysterious circumstances” (CB p.17-18).
The applicant claimed to have set up his own cosmetic and artificial jewellery business and became a member of the Shriv Shena Party. He stated that initially events proceeded normally until February 2002 when Hindu Muslim riots erupted in the states of Gujarat and Maharashtra when Muslim extremists killed more than 70 Hindu pilgrims by setting fire to a train. The applicant claimed he went to Gujarat to organise relief camps for the victims of the riots “under the banner of the Shriv Shena and BJP Party” but Muslims attacked the camp and he and others sustained serious injuries. When the applicant returned to Mumbai, he claimed that he and his family were targeted by Muslim extremists and terrorists groups and he started receiving death threats verbally and over the phone. This prompted the applicant’s decision to leave India and come to Australia (CB pp.19-20).
Litigation history
A brief summary of the litigation history of this application is as follows:
a)Application for protection visa lodged on 17 September 2003 (CB pp.1-4);
b)The delegate refused to grant protection visa on 15 December 2003 (CB pp.34-41);
c)Applicant applied to Tribunal for review of the delegate’s decision on 7 January 2004 (CB pp.42-45);
d)Tribunal decision affirming delegate’s decision handed down on 13 May 2004 (CB pp.55-74);
e)Applicant applied to Federal Magistrates Court for review of the Tribunal’s decision on 10 June 2004 (annexure A to the affidavit of Ms Rushton);
f)Directions hearing before Registrar McIllhatton on 24 September 2004 where orders were made that the applicant file and serve an amended application giving full particulars of each ground of review relied upon by 29 October 2004; and
g)Respondent wrote to the applicant on 30 September 2004 informing him he was required to file and serve an amended application in accordance with Court orders made on 29 October 2004.
Legislation
Rule 13.10 of the 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:
(a)no reasonable cause of action is disclosed in relation to the proceedings or claim for relief; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of process of the Court.”
Rule 1.05 of the 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 (“the 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 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’.
Application of the Rules
The Court has the power to exercise its discretion to summarily dismiss an application for judicial review on the grounds that no reasonable basis for the application is disclosed where:
a)The case of the applicant is “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commission for Railways NSW; SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs; SDAE v Minister for Immigration & Multicultural & Indigenous Affairs.
b)Were the case to go to trial in the ordinary way it is “apparent that it must fail”: Webster v Lampard; Xie v Immigration Department; SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs; Applicant A175/2002 v Minister for Immigration & Multicultural & Indigenous Affairs.
c)One can say without doubt, on the whole of the material, that there is no real question to be tried: Fancourt v Mercantile Credits Ltd; Miller v Wertheim & Anor; Kosi v Minister for Immigration & Multicultural & Indigenous Affairs (“Kosi”).
d)Where there is no factual substratum to support the claim made: Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs; Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs.
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: Chung v University of Sydney at [7] to [14] (upheld on appeal by the Federal Court in Yo Han Chungv University of Sydney); Kosi.
The Tribunal’s findings and reasons
The Tribunal wrote the applicant on 27 February 2004 inviting him to attend a Tribunal hearing on 16 April 2004 (CB pp.48-49). The applicant attended the hearing and gave oral evidence. After considering the applicant’s submissions, oral evidence and country information, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations and handed down its decision on 13 May 2004, affirming the delegate’s decision to refuse to grant a protection visa (CB pp.59-74).
Application for review of the Tribunal’s decision
On 10 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“1.The tribunal made his decision in bad faith.
2.The tribunal deprived me of the natural justice.
3.The tribunal denied the evidentiary proof of my claim.
4.The tribunal’s decision did not reflect the material facts of my claim.
5.The tribunal has given a decision, which was present in the back of it’s mind.
6.The tribunal mixed up many facts with this decision which affected the decision.
7.The tribunal concentrated in particular fact, while ignored many other facts in this condition.
8.The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.
9.I will provide more details later.” (Errors included)
Respondent’s submissions
Mr D Sim, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which he addressed and provided additional material at the hearing. The respondent submitted that the application filed by the applicant on 10 June 2004 discloses no reasonable cause of action and briefly addresses each of the grounds pleaded:
a)In respect of the first ground, it is submitted that an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker and it must be clearly alleged and proved: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (“SBBS”) at [43]. The respondent submitted that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith will be rare and extreme: SBBS at [44]. Further, it was submitted, an allegation of bad faith in s.39B proceeding must be particularised: Order 54B, rule 2 of the FC Rules and the applicant has not particularised this ground of review and on the face of the record there is no evidence capable of supporting such an allegation.
b)In respect of the second ground, it was submitted, that this ground of review is not particularised and on the face of the material before the Court it is obvious there is no denial of natural justice:
i)The applicant was provided with an opportunity to attend a hearing before the Tribunal (CB pp.48-49) and elected to attend (CB p.50); and
ii)This was also a matter to which s.422B applied.
c)The respondent submitted that the third ground is not particularised and it impermissibly invites the Court to revisit the merits of the case.
d)The respondent submitted that the fourth ground is not particularised and it impermissibly invites the Court to revisit the merits of the case.
e)In respect of the fifth ground, it was submitted that insofar as the allegation of actual bias is a separate ground of review from that of bad faith and it is difficult to demonstrate actual bias solely upon the published reasons: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs per von Doussa J at [36]-[38]. The respondent submitted that the applicant has provided no particulars and there is no evidence on the face of the material before the Court to support this claim.
f)The respondent submitted that the sixth ground is not particularised and it impermissibly invites the Court to revisit the merits of the case.
g)The respondent submitted that the seventh ground is not particularised and it impermissibly invites the Court to revisit the merits of the case.
h)In respect of the eighth ground, the respondent submits that the applicant has not particularised this ground and it is obvious from the Tribunal’s decision that it had considered the material provided by the applicant but was not satisfied as to the applicant’s claims. Further, it was submitted, that the Tribunal was not obliged to make positive inquiries into the applicant’s claims nor was it for the Court to revisit the merits of the case insofar as the applicant’s claim was a “genuine convention based refugee claim”.
The respondent also submitted that on the face of the material before the Court there is no matter capable of amounting to jurisdictional error. It contended that the Tribunal’s decision turns primarily upon its conclusions that:
a)The harm suffered by the applicant was general and widespread violence did not amount to persecution;
b)It was reasonable for the applicant to relocate within India (CB pp.71-73).
The respondent submitted that the applicant did not comply with the Court orders made on 17 September 2004 and elected not to file an amended application or evidence upon which he proposed to rely by
29 October 2004.
Applicant’s submissions
On 1 February 2005 the applicant filed and served a document headed “Applicant’s Written Argument” which he stated he wished to rely on at the hearing. Regretfully the contents of that document do not assist the applicant in any significant way. The contents are often seen in this Court and consist of a number of general statements in respect of review applications of the Tribunal’s decisions. Substantial parts of the document bear no relation to the applicant’s case or circumstances.
The document has been prepared in response to the respondent’s application as it does contain reference to the fact that this matter was scheduled to appear before me in April 2005 for a final hearing of the substantive matter and indicates that the respondent’s solicitor is seeking to prevent a hearing taking place because of the filing of the application for summary dismissal.
The applicant indicated that he is not represented by either a solicitor or a barrister although he has received advice from the Pilot Legal Advice Scheme (NSW) barrister appointed by the Court Registry. The applicant claimed to understand that he needs to file submissions fourteen days prior to that scheduled hearing date but made no reference to the filing of an amended application as directed by the Registrar during the directions hearing on 17 September 2004. The remainder of the document supposedly addresses the applicant’s claim against the Tribunal’s decision on the grounds that the decision was induced or affected by actual bias. As I indicated earlier, the balance of the document gives a number of unrelated material taken from other submissions addressing different grounds of appeal in matters unrelated to the applicant’s case. In effect, it is a cobbling of various material prepared for this review jurisdiction but unrelated to the matter being prosecuted by the applicant.
Reasons
I accept the respondent’s submissions that the grounds pleaded in this application bear no relation to the contents of the Tribunal’s decision. The Tribunal decision indicates that the various material available to it has been correctly considered and applied as required by the Act. The claims by the applicant in respect of his persecution are not accepted by the Tribunal and in each case the substantive reasons for that conclusion are clearly set out.
The proposition that the self represented applicant has not been able to effectively articulate his claim that the Tribunal has made a jurisdictional error is not sustainable on the face of the decision. The application in its current form would not succeed a hearing of the substantive matter. It is acknowledged that the applicant has gone to some effort to prepare and file written argument seeking to defeat the respondent’s application to have this matter summarily dismissed. Regretfully, for the applicant, that argument bears no relation to his case and the fact is that material is put before this Court by migration agents or informal assistance groups that have accumulated a number of statements from various submissions which are mistakenly believed to set aside the requirements of this Court.
If I give the applicant further opportunity to file an amended application upon which he is to rely at a substantive hearing before me in April of this year, I am not convinced that the applicant is able to prepare a document that identifies jurisdictional error. On the material presented so far, the applicant has been reliant upon third party assistance which does not address the issues that can be ventilated before this Court. The applicant has been provided with the opportunity to file an amended application and that order was made by a Court Registrar at a directions hearing in September 2004. No documents were filed in response to that order and when the applicant was questioned about the issue he indicated he had not taken any steps to comply with that order. Finally, the Court has an obligation where the self represented litigant appears attempting to prosecute his claim but due to his inability to articulate the nature of the error in the Tribunal decision is unable to satisfactorily plead that cause. A fair reading of the Tribunal’s decision does not indicate that this is the situation before the Court in this matter.
Conclusion
The substantive application does not raise any issue that indicates that the Tribunal’s decision of 13 May 2004 was infected by jurisdictional error. Consequently, I uphold the application brought by the respondent and dismiss the applicant’s substantive application.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 18 February 2005
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