SZGLW v Minister for Immigration
[2006] FMCA 72
•27 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 72 |
| MIGRATION – Review of Refugee Review Tribunal decision – notice of Motion – notice of motion upheld – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 422B, 424A, 424B
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), Part 13, Rule 13.10
Federal Magistrates Act 1999 (Cth), ss.14, 15
Migration Regulations 1994 (Cth)
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959
Webster v Lampard (1993) 177 CLR 598
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 365
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Miller v Wertheim & Anor [2001] FMCA 103
Chung v University of Sydney [2001] FMCA 94
Yo Han Chung v University of Sydney [2002] FCA 186
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Rana v University of South Australia [2004] FCA 559
SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457
| Applicant: | SZGLW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG1457 of 2005 |
| Delivered on: | 27 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 15 December 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Mandarin interpreter.
| Advocate for the Respondent: | Ms K Crawley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as second respondent.
The respondents’ Notice of Motion is upheld.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1457 of 2005
| SZGLW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
By an interlocutory application filed on 26 September 2005 the respondents moved the Court for orders that the proceedings be dismissed pursuant to Part 13, Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the basis that:
a)no reasonable cause of action and/or reasonable basis for the application is disclosed; and/or
b)further or in the alternative, the proceeding or claim for relief is frivolous or vexatious.
Further or in the alternative, an order that the proceedings be dismissed pursuant to Rule 13.03(2)(b) of the Rules.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 3 June 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 January 2005 and handed down on 9 February 2005, affirming the decision of the delegate of the respondent (“the delegate”) made on 21 October 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZGLW”.
For the purpose of this Notice of Motion the respondents tendered and applied for the affidavit of Patrick David Reynolds sworn on
21 September 2005 (“the affidavit of Mr Reynolds”) to be admitted into evidence. A Court Book, prepared by the respondents’ solicitors, was filed and served on 12 July 2005.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.
Background
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 7 October 2004. On 14 October 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-35) (“CB”). On
21 October 2004 the delegate refused to grant a protection visa (CB pp.38-49) and on 24 November 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.52-55).
According to the applicant’s responses to questions contained in the protection visa application, the applicant was born in September 1969 and is a Chinese national. He has had nine years of education in China and gave his past occupation as “worker” and “cadre”. The applicant made the following statement in his protection visa application as the reason he left China and feared returning to that country and the reasons for that fear:
“Two years ago, as my health was not very good, I learnt Falungong from my colleague. Very soon, I realized that Falungong is good for my health and it has become my belief. I started to practice Falungong every day, and I taught other people how to practice Falungong. In April 2004, when I practiced Falungong with other members, police came to arrest people, I was detained for 5 days, and I was tormented severely. I could not enjoy freedom of belief in China. I suffered persecution from the Chinese authorities because of my belief. After I was released, as I had my passport ready, I got my visa to come to Australia for protection. I will be persecuted on my return to China.” (CB p.25)
The tribunal’s findings and reasons
In its decision, the Tribunal made the following findings:
a)the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the assertion of fear or that it is “well founded” or that it is for the reasons claimed;
b)it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out;
c)the Tribunal accepted that Falun Gong practitioners had been persecuted in China for practising Falun Gong. However, the question was whether the applicant was a Falun Gong practitioner as he claimed;
d)the applicant’s claims were general and lacked detail. He had provided no particulars of how Falun Gong was good for his health, how he practised Falun Gong, where he practised, or where and how he taught others to practise Falun Gong. The applicant did not detail where he was detained, how he was tortured or how or why he was released from detention;
e)details of the applicant’s claims are merely assertions;
f)given the lack of detail in the claims and without the opportunity to test the applicant’s assertions at a hearing, the Tribunal was not prepared to simply accept the claims (CB pp.72-73).
Application for review of the tribunal’s decision
On 3 June 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The decision involved an error of law in that:
(a)procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed.
(b)the decision was an improper exercise of the power conferred by the Migration Act and Regulations.
(c)the decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.
(d)there was no evidence or the other material to justify the making of the decision.
The applicant attended a first Court date directions before Registrar McIllhatton on 15 June 2005 and consented to Short Minutes of Order requiring the applicant to file and serve an amended application giving complete particulars of each ground of review to be relied upon by 10 August 2005. The applicant was also required to file and serve any affidavit containing additional evidence to be relied upon including a transcript of the Tribunal hearing by 10 August 2005. These orders were not complied with.
Respondents’ application
Ms K Crawley, Solicitor appearing for the respondents, filed written submissions prior to the hearing which contained the following contentions:
[15]The respondent submits that there is no reasonable basis to the application.
[16]Rule 13.10 of the FMC 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 proceeding 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 the process of the Court.”
[17]Rule 1.05 of the FMC 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.”
[18]Order 20 Rule 2 of the Federal Court Rules (“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).”
[19]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’.”
[20]Accordingly it is submitted that through the application of FMC Rule 1.05(2), Order 54B Rule 5 of the FC Rules applies such that Rule 13.10(a) of the FMC Rules reads “no reasonable basis for the application is disclosed”.
[21]The Court will exercise its discretion to summarily dismiss an application for judicial review on the grounds that no reasonable basis for the application is disclosed if:
(a)the applicant’s case is “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 236 at 129; SDAE v MIMIA [2003] FCA 959 at [19];
(b)were the case to go to trial in the ordinary way, it is “apparent that [the application] must fail”: Webster v Lampard (1993) 177 CLR 598; see also Xie v Immigration Department [1999] FCA 365 at [20];
(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 (1983) 154 CLR 87 at 10; Miller v Wertheim & Anor [2001] FMCA 103; Xie v Immigration Department [1999] FCA 365 at [20];
(d)the claim is “lacking in substance”: Chung v University of Sydney [2001] FMCA 94 at [18] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186); or
(e)there is “no factual substratum to support the claim made”: Applicant A135/2002 v MIMIA [2003] FCA 708 at [6]; see also Applicant A163 of 2002 v MIMIA [2003] FCA 677 generally.
The respondent submits that the matters raised in the application disclose no reasonable basis for the above reasons.
[22]Alternatively, if the Court is minded to treat a ‘bare’ assertion of a legal error as disclosing a reasonable basis for the application, the respondent submits that the proceedings are nevertheless frivolous – these bases for summary dismissal are separate and are not to be read conjunctively: see NBGZ v MIMIA [2005] FCAFC 119, per Conti J at [47], [50] and per Allsop J at [60]-[65]. Despite using terminology of legal error, the grounds raised are hopeless.
[23]It is noted that where an 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 [2001] FMCA 94 at [7] to [14] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186); Kosi v MIMIA [2003] FMCA 340. The respondent submits that no arguable case is apparent from the material. The RRT invited the applicant to a hearing before it by way of invitation sent to the address provided by the applicant – a hearing which the applicant did not attend. Accordingly the RRT was entitled to proceed without providing the applicant with a further opportunity to appear before it pursuant to section 426A, which it did. Unsurprisingly, it was not satisfied as to the applicant’s claims and it was accordingly obliged to refuse the application. As stated by the Full Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 (per French, Emmett and Dowsett JJ at [5]):
“In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.” (Emphasis added)
[24]Further and in the alternative, the respondent submits that the proceedings should be dismissed because the applicant failed to “file and serve an amended application giving complete particulars of each ground of review relied upon by 10 August 2005”, as he was ordered to do so by this Honourable Court on 15 June 2005:
(a)the applicant consented to this order and was present when it was made by this Honourable Court; and
(b)the applicant to date has not filed an amended application.
Reasons
The applicant in these proceedings is a self represented litigant and appeared with the assistance of a Mandarin interpreter. The applicant first appeared in this Court before Registrar McIllhatton on 15 June 2005 and was provided with a timetable for the future proceedings in this matter including the requirement to file an amended application and any additional evidence to be relied upon in the form of an affidavit. These orders were not complied with and consequently the respondents’ solicitors filed an interlocutory application seeking the matter be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Act 1999 (Cth). The matter was listed for an interlocutory hearing on 11 October 2005 but on that date there was no appearance by the applicant and the matter was adjourned until 15 December 2005 with directions to the respondents’ solicitors to contact the applicant advising him of these arrangements.
When the applicant appeared at the first Court date hearing he was offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) to provide him with advice and assistance in the preparation of the matter for hearing. A panel adviser was allocated to the applicant and contact was made between the parties. However, the applicant failed to appear at the conference with the panel adviser. Subsequently, the panel adviser provided the applicant with advice by mail.
The applicant also failed to attend the Tribunal hearing with its invitation letter being returned to the Tribunal and marked “Address Unknown”. When the applicant filed his original protection visa application he provided an address in Campsie to which various items of correspondence were forwarded. On 22 November 2004 the applicant completed a Change of Address form advising the Department that he had changed his residential address to [No.] South Parade, Campsie and also provided a Post Office Box also in Campsie. The Campsie residential address was noted when the applicant completed his application for review of the delegate’s decision but no reference was made to the Post Office Box. The Tribunal subsequently wrote to the applicant on 13 December 2004 (CB p.58) indicating that the applicant had recorded his residential address and his mailing address both at [No.] South Parade, Campsie and requesting the applicant verify that the address was correct. The Tribunal received no response to that correspondence and subsequently forwarded the hearing invitation to [No.] South Parade, Campsie address (CB pp.59-60) and it was this letter that was returned to the Tribunal. All subsequent correspondence was sent to the same residential address and none of the subsequent correspondence was returned to the Tribunal.
The pleaded grounds contained in the application are:
a) procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed.
b)the decision was an improper exercise of the power conferred by the Migration Act and Regulations.
c)the decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.
d)there was no evidence or the other material to justify the making of the decision
These grounds were not particularised and no affidavits were filed as to what procedures were not observed or what the nature of the errors of law were being alleged.
The assertions pleaded in the application do not identify the nature or details of the legal error made by the Tribunal. The question to be considered is whether the application discloses any ground of review of an alleged jurisdictional error. I refer to the submissions filed by Ms Crawley, on behalf of the first respondent and, in particular, paragraph [21] of those submissions which identify the five criteria used to determine whether a pleading discloses a ground of review that is likely to succeed in a formal hearing of this matter.
a)In SDAE v Minister for Immigration & Multicultural & Indigenous Affairs per Mansfield J at [19] his Honour sets out the test “It is axiomatic that the Court should not grant the summary relief sought unless the claim is obviously untenable: see General Steel Industries Inc. v Commissioner for Railways (NSW) (1994) 112 CLR 125 at 129.”
b)In Webster v Lampard per Mason CJ, Deane and Dawson JJ at page 602, their Honours set out the test were the case to go to trial in the ordinary way, it is “apparent that [the applicant] must fail”: see also Xie v Minister for Immigration & Multicultural & Indigenous Affairs at [20].
c)In Fancourt v Mercantile Credits Ltd per Mason, Murphy, Rawson, Deane and Dawson JJ at page 99, one can say without doubt, on the whole of the material, that there is “no real question to be tried”: see also Miller v Wertheim & Anor; Xie v Minister for Immigration & Multicultural & Indigenous Affairs at [20].
d)In Chung v University of Sydney per Driver FM at [18] (upheld on appeal by the Federal Court in Yo Han Chung v University of Sydney (“Yo Han Chung”)) the claim is “lacking in substance”.
e)In Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs per Finn J at [6], there is “no factual substratum to support the claim made”: see also Applicant A163 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs generally.
The four pleaded grounds are bare assertions that the Tribunal’s decision contained jurisdictional error. Grounds 1, 2 and 3 assert, without identifying, that the error arose by failure of the Tribunal to comply with the Act and Regulations (see Migration Regulations 1994 (Cth)). None of those errors are identified.
Ground 4 asserts there is no evidence or supporting material that justify the Tribunal’s decision. The finding of the Tribunal is actually the converse of that allegation as the Tribunal indicated that the applicant had failed to provide any evidence in support of his claims and failed to attend the Tribunal hearing to explain the basis of his claims.
I accept the respondents’ submission that the matters raised in the application disclose no reasonable basis of success if the application is taken to a full trial. The four grounds pleaded do not satisfy the five tests as set out above.
The applicant in these proceedings is self represented and there was no indication as to what assistance he received in the preparation of his original application filed in this Court on 3 June 2005. It was apparent that the applicant had received some assistance and it would appear that the person(s) who assisted in the preparation of the applicant’s original application had a limited knowledge of migration law but it is not possible to determine how this knowledge was acquired. The priority at that stage appeared to be the initiation of the proceedings within the time limits required by the legislation. It would be inappropriate to penalise the applicant on the contents of the pleadings prepared at that time. However, at the time of the directions hearing, the applicant was supplied with a timetable and access to assistance for the preparation of his amended application. The purpose of those next steps were explained to the applicant and gave the applicant more time to commence appropriate preparation in accordance with that timetable. The rigid time parameters were removed and an accepted schedule was established. The applicant failed to comply with those requirements and, on his own admission, had not taken any further steps to prepare for the final hearing of the matter. If no action had been taken by the respondents’ solicitor, the most likely outcome would have been for the applicant to appear at the final hearing with exactly the same circumstances as he appeared before me on this occasion.
In the absence of any clear pleadings and particularisation, the only other approach to be adopted is to assess, on a fair reading of the Tribunal’s decision, whether it was apparent that the Tribunal fell into form of legal error in its deliberation and whether that error constituted a jurisdictional error.
Ms Crawley, in her submissions which have been reproduced in para.11 above and in particular [23], sets out the Court’s obligation to independently review the material available to determine whether an arguable case could be made out: Yo Han Chung. In the absence of any particularised pleadings or affidavit evidence, I believe I am obliged to take that course.
In undertaking that task I am mindful of the decision in Rana v University of South Australia per Lander J at [78]-[79] which states:
“It was not appropriate on this application to make any determination of the facts.
In my opinion, the Federal Magistrate was led into error by the way in which the respondent pursued its application to strike out the appellant’s claim. The respondent relied upon the evidence contained in the solicitor’s affidavit to establish that the appellant’s claim lacked merit. The true inquiry is not whether the appellant’s claim lacked merit, but whether the appellant’s claim failed to disclose a reasonable cause of action.”
As the decision was made after 4 July 2002, the proceedings were subject to the operation of s.422B which is an exhaustive statement of the requirements of the natural justice hearing rule and are set out in Division 4 Part 7 of the Act. An examination of the Court Book and the Tribunal’s decision does not reveal any aspect of these requirements that were not adhered to.
The Tribunal’s decision records under the subheading “Claims and Evidence”, the following details in respect of the transfer of information from the delegate to the Tribunal:
“The Tribunal has before it the Department’s file CLF2004/61928, which includes the protection visa application and the delegate’s decision record. The Tribunal has also had regard to the material referred to in the delegate’s decision and to material available from other sources.” (CB p.69)
In the delegate’s decision 18 references were referred to in respect of information that the delegate considered in its decision. The Tribunal indicated it had received all of this information and had it at its disposal. The Tribunal, in its decision, referred to other information that it had accessed during its consideration and no issue was raised in respect of this material.
Section 424A of the Act does not appear to raise any issue in respect of compliance by the Tribunal. The Tribunal’s decision notes the lack of detail and any explanation in respect of any of the applicant’s claims. The information that the Tribunal referred to falls into the exemption under s.424A(3) being information which is general in nature and not specifically about the applicant himself. In a letter dated
16 December 2004, the Tribunal wrote to the applicant advising 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 (CB pp.59-60). The applicant was invited to attend a Tribunal hearing to give oral evidence and present arguments in support of his claim. That invitation was extended to any witnesses the applicant may have wished to call in support of his application. The circumstances of the invitation to the applicant were recorded in the Tribunal’s decision.The Tribunal undertook the additional step of verifying the contact address of the applicant by forwarding him a letter seeking verification of his address. The return of the hearing invitation letter to the Tribunal does not prevent the Tribunal from proceeding in the absence of the applicant and subsequently proceeding to a finding: SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs per Bennett J. The requirements of s.424B have been complied with by the Tribunal to the extent that the situation can be determined from the contents of the Court Book and the Tribunal’s decision and in the absence of any evidence or submission to the contrary.
I have undertaken the task of assessing the Tribunal’s decision as to whether it fell into a form of legal error in its deliberation and whether that error constituted jurisdictional error and I am not satisfied that any jurisdictional error can be identified by adopting that process.
Conclusion
I uphold the respondents’ Notice of Motion and dismiss the application for judicial review filed on 3 June 2005.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 27 January 2006
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