SZHLZ v Minister for Immigration
[2006] FMCA 983
•10 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 983 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Pakistan – summary dismissal of application as disclosing no arguable case. |
| Federal Magistrates Act 1999 (Cth). S.17A Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424, 425 Migration Litigation Reform Act 2005 (Cth) |
| Ahmed v Minister for Immigration (2001) 184 ALR 343 VCAK of 2002 v Minister for Immigration [2004] FCA 459 W389/01A v Minister for Immigration (2002) 125 FCR 407 WAGJ v Minister for Immigration [2002] FCAFC 277 Webster v Lampard (1993) 177 CLR 598 |
| Applicant: | SZHLZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3134 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 10 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Jayawardena |
| Solicitors for the Respondents: | Mr J Bird Phillips Fox |
CORRECTED INTERLOCUTORY ORDERS
The application is dismissed summarily, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3134 of 2005
| SZHLZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 4 October 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The matter comes before me today on a motion by the first respondent seeking the summary dismissal of the judicial review application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the basis that the judicial review application fails to disclose an arguable case.
As I made clear to the representatives at the outset this morning the judicial review application was filed on 21 October 2005 before the amendment of the Migration Act 1958 (Cth) (“the Migration Act”) pursuant to the Migration Litigation Reform Act 2005 (Cth) and before the amendments to the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”) also made by that Act, and before the amendment of rule 13.10 of the Federal Magistrates Court Rules which reflected the enactment of s.17A of the Federal Magistrates Act. The matter therefore falls to be determined pursuant to rule 13.10 as it stood immediately before 1 December 2005.
Relevant background is set out in the Minister's written submissions supporting the motion filed on 22 June 2006. I adopt as background paragraphs 2 to 8 of those written submissions:
The applicant is a male citizen of Pakistan born on 27 July 1970.[1] He arrived in Australia on 28 February 2005.[2] He applied for a protection visa on 14 April 2005. He claimed to have been kidnapped and tortured on the basis of his political opinion. He feared being jailed or killed if forced to return to Pakistan.[3]
[1] court book, page 13
[2] court book, page 15
[3] The applicant's written claims to the Department are summarised at court book, page 57.
The application was refused on 2 June 2005.[4] The applicant applied to the RRT for review on 14 June 2005.[5] No further claims were contained in his application for review.
The RRT wrote to the applicant on 14 June 2005.[6] This letter contained the following information:
…
What is a hearing and why is it important?
A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:
·What you tell the Member at the hearing
·Information or documents you give the Tribunal
·Information or documents you ask others to give the Tribunal…
[4] court book, page 32
[5] court book, page 40
[6] court book, page 44
What does the Tribunal expect me to do?...
·Immediately send us any documents, information or other evidence you want the Tribunal to consider…"
The RRT wrote to the applicant again on 9 August 2005, inviting him to attend a hearing on 9 September 2005. This letter stated;
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The applicant expressly declined that invitation.[7]
The RRT made its decision on 13 September 2005 and handed down its decision on 4 October 2005.[8]
The decision of the RRT
The RRT affirmed the decision. It considered the applicant's claims to be lacking in detail. It was unable to be satisfied, on the evidence before it, that the applicant had a well founded fear of persecution within the meaning of the Convention.
[7] court book, page 79
[8] court book, page 53
The applicant relies upon his amended application filed in court on 3 March 2006. Mr Jayawardena, for the applicant, submitted that only ground 1 asserting a breach of s.424 of the Migration Act was pressed. The application is supported by an affidavit by the applicant also filed in court on 3 March 2006. In that affidavit the applicant deposes as to his personal circumstances and attaches documents which were apparently not available to the RRT at the time it made its decision but which are said to support the applicant's claim to be a refugee. I received that affidavit as evidence for the purposes of today's hearing. I also received a court book filed on behalf of the Minister on 2 December 2005.
The court book[9] discloses that on 9 August 2005 the applicant was sent a hearing invitation which advised, relevantly, that the RRT had considered all of the material the applicant had presented in support of his review application but was unable to make a decision in the applicant's favour on that information alone. The applicant was invited to a hearing before the RRT on 9 September 2005 at 9.00am.
[9] page 46
On page 48 of the court book is the applicant's response to that hearing invitation. That discloses that the applicant declined to attend a hearing. In his affidavit the applicant asserts that he did not understand the process upon which he was engaged and was suffering from a mental condition which affected his judgement. However, there is no evidence that any medical condition was made known to the RRT. As is clear from the decision record of the RRT[10], the RRT considered it was entitled to proceed in the applicant's absence because he declined to attend a hearing.
[10] commencing at court book, page 53
Mr Jayawardena submits that there is an arguable issue in this case that the RRT should have sought further information from the applicant pursuant to s.424 of the Migration Act. However, in my view, that argument cannot succeed. I accept that the Court must be cautious in disposing of applications summarily as disclosing no arguable case but there is no arguable case. I accept the Minister's submissions on the general principles set out in paragraphs 10 to 13 of those written submissions:
The application should be summarily dismissed as disclosing no reasonable cause of action.
In Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at 99 the High Court stated that the power of summary disposal should be exercised where it is clear that there is really no question to be tried. See also General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 125, Webster v Lampard (1993) 177 CLR 598.
While accepting that the Court’s power to summarily dismiss an application should be used sparingly, the respondent submits that it is inevitable that this applicant would be unsuccessful if the application were heard on a substantive basis.
Both grounds in the amended application are devoid of any substance and completely misconceive the operation of Division 4 of Part 7 of the Migration Act.
It is unnecessary to deal with the Minister's submissions in relation to ground 2 as that ground has not been pressed.
In relation to ground 1 I accept that while the RRT has the power to obtain further information pursuant to s.424 it has no obligation to do so. I agree with and adopt for the purposes of this judgment paragraphs 14 to 17 of the Minister's written submissions:
This ground alleges that the RRT committed a "serious breach" of s.424 of the Act by not "calling from the applicant any information that it considered relevant for conducting the review."
It is well established that the power to obtain information under s.424 of the Act is permissive and not mandatory in nature: see SAAP v Minister for Immigration [2005] HCA 24. A failure to consider whether to obtain further information under this section does not constitute a reviewable error: VCAK of 2002 vMinister for Immigration [2004] FCA 459 at [27]; WAGJ vMinister for Immigration [2002] FCAFC 277 at [21], [24]-[25]; W389/01A vMinister for Immigration (2002) 125 FCR 407 at [74]-[78]; Dissanayake vMinister for Immigration [2002] FCA 976 at [18]; SCAS vMinister for Immigration [2002] FCA 598 at [40]; Ahmed v Minister for Immigration (2001) 184 ALR 343 at [35]-[39], Hernandez v Minister for Immigration [2001] FCA 725; Kabir v Minister for Immigration (2001) 184 ALR 295; Masood v Minister for Immigration [2001] FCA 405; Minister for Immigration v Anthonypillai (2001) 106 FCR 426 at [86]; Kulwant Singh v Minister for Immigration [1996] FCA 1013.
The RRT was required to notify the applicant if it could not make a finding in his favour on the documents before it, and invite him to attend a hearing (s.425). The RRT complied with that obligation (see paragraphs 4 and 5 above). It explained to the applicant, in clear terms, that he could not be successful unless he provided further information.
It cannot be seriously suggested that the RRT denied the applicant procedural fairness in these circumstances. The applicant expressly declined his opportunity to provide further evidence. He “cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity” : S58 of 2003 vMinister for Immigration [2004] FCAFC 283 at [26].
In the absence of any information that the applicant was suffering a medical disability and that the applicant had some further information that he regarded as important to put before the RRT there was no obligation upon the RRT to undertake any further inquiries pursuant to s.424 of the Migration Act.
The application is, in my view, doomed to fail and in the circumstances it should be dismissed summarily pursuant to rule 13.10(a) of the Federal Magistrates Court Rules. I will so order.
On the question of costs, the application having been dismissed summarily, costs should follow the event. I am told that the Minister's actual costs incurred to date are in the order of $4,600 and the Minister seeks an order for costs on a party party basis fixed in the sum of $3,300. Mr Jayawardena conceded that the application for costs in the amount proposed could not be seriously resisted. I accept the Minister's assessment of costs on a party and party basis. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,300.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 July 2006