SZUTB v Minister for Immigration & Border Protection
[2015] FCCA 1383
•29 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUTB v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1383 |
| Catchwords: ADMINISTRATIVE LAW – Application for an order for applicant to show cause – the Court’s power under rule 44.12 of the Federal Circuit Court Rules 2001 – two-staged approach to the operation of rule 44.12 – no arguable relief claimed – no jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s.42 Migration Act 1958 (Cth), ss.36(2)(aa), 424, 425, 476 Federal Circuit Court Rules 2001 (Cth) rr.4.01(1), 4.05(1), 44.12, 44.13(1) |
| MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593 Siddique v Minister for Immigration & Border Protection [2014] FCA 1352 Spencer v The Commonwealth of Australia (2010) 241 CLR 118 SZTTW v Minister for Immigration & Border Protection [2014] FCA 837 |
| Applicant: | SZUTB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1981 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 22 May 2015 |
| Date of Last Submission: | 22 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms N. Johnson, Mills Oakley |
ORDERS
Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1981 of 2014
| SZUTB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (“Act”) in respect of a decision made by the Refugee Review Tribunal (“Tribunal”) dated 12 June 2014.
The application was made in accordance with the Federal Circuit Court Rules 2001 (“Rules”) by filing a document entitled “Application” in accordance with an approved form (see r.4.01(1)) together with an affidavit (see r.4.05(1)).
The application contained the following grounds:
1.I was able to stay in China for 11 months before I came to Australia is because I did not go to petition during this period, the authority only monitored me. I was able to issue a valid passport because I paid money for my passport, they receive my money and gave me a passport. But it does not mean that the Chinese government do not have interest in me.
2.My family was able to continue living in China because all documents and bank loans were signed under my name, so the bank would only request me to repay the debt. If I return to China, the Chinese government will not allow me to flee abroad again, so I couldn’t live in China. The reason why I said I do not have any documents because I did not take any documents with me when I came to Australia and now I am afraid to ask my wife to find these documents for me through phone as my wife is likely to be monitored by government officials, it will put her in danger.
3.I wish to the Federal Circuit Court of Australia could consider my situation.
In the affidavit accompanying the application the applicant affirmed (in English and apparently without the assistance of an interpreter):
1.I lodged application for protection visa on 31 May 2013 and my application was refused on 2 December 2013;
2.I appealed to RRT but was refused on 12/06/2014.
A copy of the Tribunal’s decision was attached to the affidavit.
The matter first came before the Court on 3 September 2014. On that date, Judge Nicholls made orders by consent including that the applicant file and serve any amended application and any affidavit containing additional evidence to be relied upon by 1 December 2014. The matter was then set down for mention at a callover on 11 March 2015. The applicant did not file, and still has not filed, any amended application or any further evidence.
On 11 March 2015 the Court ordered, again by consent, that the applicant file and serve any written submissions and list authorities 14 days before the hearing and that the matter be listed for a show cause hearing pursuant to r.44.12 of the Rules at 11:00am on 29 April 2015. The date of the hearing was subsequently changed to 22 May 2015 at 10:15am and the matter was transferred to my docket. The applicant did not file any submissions.
The applicant appeared at the hearing unrepresented and stated, with the assistance of an interpreter, that he did not wish to make any submissions.
Rule 44.12 of the Rules provides:
Show cause hearing
(1)At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or
(b)if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c)without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2)To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
Judge Whelan noted in MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593 at [13], and I agree, the power of the Court under r.44.12(1)(a) is a form of summary dismissal.
As French CJ and Gummow J said in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [24]:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
More recently, in Batistatos v Roads and Traffıc Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
“…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”
(Footnotes omitted)
The power in r.44.12(1)(a) has two components: lack of satisfaction that an applicant has raised an arguable case for the relief claimed, and a residual discretion whether or not to dismiss the application: Siddique v Minister for Immigration & Border Protection [2014] FCA 1352 at [19] citing SZTTW v Minister for Immigration & Border Protection [2014] FCA 837 at [20].
Although in Siddique Gilmore J referred to the question as being whether “an applicant” has raised an arguable case for relief, the rule refers to the question as being whether “the application has raised an arguable case for the relief claimed.” The word “application” appears to be a reference to the phrase “an application for an order to show cause” in the chapeau to r.44.12(1). That appears in turn to be a reference to the application made in the approved form in accordance with r.4.01(1) of the Rules. Ms Johnson, who appeared for the Minister at the hearing, submitted that that construction was consistent with r.44.13(1) which limits an applicant at the hearing of an application for an order to show cause to the “relief sought and the grounds mentioned in the application”.
On one view then, the question for the Court is restricted to a determination whether the grounds set out in the application form itself have raised an arguable case for the relief claimed. If that were the case, this application would be bound to fail. The grounds in the application do no more than make assertions of fact which, if they had been accepted by the Tribunal, might have affected its decision. In other words, they go only to the merits of the Tribunal’s decision and are insufficient to raise the power of this court to grant any relief by way of constitutional writ.
However, as noted in Siddique, the question as to whether or not the Court is satisfied that the applicant has raised an arguable case for the relief claimed is only the first part of the inquiry required by r.44.12(1). The second part of the inquiry is whether, if the Court is not so satisfied, the Court ought to exercise its discretion to dismiss the application. Although that discretion is, in terms, unconfined, it is to be understood in the context that it is a power granted by the Rules to the Court which is constituted to exercise the judicial power of the Commonwealth. Thus, it is to be exercised having regard to all of the circumstances that appear before the court in order to advance the interests of justice. Amongst the circumstances that appear before the Court include the reasons for decision of the Tribunal on the material relevant to the making of that decision and the conduct of the Tribunal’s review of the delegate’s decision. In my view, although the applicant is confined by operation of r.44.13(1) to the grounds and relief mentioned in the application, the Court is not so confined. In other words, it is relevant to the exercise of discretion whether or not there appears to be any arguable grounds arising from the Tribunal’s decision and the other material.
Taking the two staged approach to the operation of r.44.12(1), for the reasons I have given above, I am not satisfied that the application has raised an arguable case for the relief claimed. For that reason, there arises a discretion to dismiss the application under r.44.12(1)(a).
In considering whether to exercise that discretion, I have taken into account the fact that the applicant is unrepresented but also the fact that, in spite of consenting to orders on two occasions, he has neither filed any amended application nor any written submissions in support of the application as it currently stands. In other words, he has had an opportunity to amend the application so that it does raise an arguable ground for relief. Further, as I have noted, at the hearing, the applicant said that he did not wish to make any submissions in support of his application.
I also bear in mind that the objects of the Rules include that they are to help the Court to use streamlined processes and that the parties must, in order to assist the Court, avoid undue delay expense and technicality. Further, it is requirement imposed by s.42 of the Federal Circuit Court of Australia Act 1999 that in proceedings before it, this Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted. These considerations suggest that the discretion ought to be exercised so that the proceedings are dismissed.
In light of the matters set out at [15] above, I have also taken into account the material in evidence before me which includes the Tribunal’s statement of reasons for its decision. In my view, for the reasons set out below, there appears to be no readily identifiable jurisdictional error in those materials, a matter that also supports an order dismissing the application.
The applicant is a citizen of China who arrived in Australia on 9 March 2013 and lodged an application for a protection visa on 31 May 2013. In his written submissions, the Minister accurately summarised the applicant’s claims as follows at [2]:
…[T]he applicant claimed to fear harm from the Chinese authorities because he protested against the demolition of his factory. He claimed that he was detained for 10 days and only released when his family paid a bribe. As a result of the demolition of his factory the applicant suffered heavy financial loss and incurred total debts of over two million RMB. He also claimed to fear harm because he was unable to pay the outstanding debts he owed to a bank and other people.
A delegate of the Minister made a decision on 2 December 2013 to refuse to grant the applicant a protection visa on the basis that his claims and evidence were not credible. The applicant applied to the Tribunal for review of that decision.
On 10 April 2014, by letter addressed to the applicant at the address notified in the application for review, the Tribunal invited the applicant pursuant to s.425 of the Act to appear before it to give evidence and to present arguments relating to the issues arising in his case. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin and English languages. There is little evidence before the Court of what occurred at that hearing other than what is set out in the Tribunal’s statement of reasons. There, the Tribunal noted that at the hearing the applicant expanded upon his claims, that those claims were discussed in detail, and that the Tribunal advised the applicant that it had concerns about the credibility of his claims.
The Tribunal found that the applicant was not a credible witness because significant aspects of his evidence were vague, highly improbable, contradictory, and lacking in detail. Further, it considered that the timing of the applicant’s travel out of China and his ability to do so on a valid passport in his own name suggested that he was not, at that time, of interest to the Chinese authorities. It found therefore that the applicant was never personally involved in petitioning or that he had attracted the adverse attention of the Chinese authorities.
In respect of the applicant’s claim concerning the outstanding debts to the bank and other parties, the Tribunal also rejected the applicant’s claims because his evidence was vague and unconvincing. It noted, for instance, that the applicant’s oral evidence lacked the same detail as his written claims had and that his evidence about being detained was vague and hesitant. As to the new claims raised by the applicant at the hearing, he did not adequately explain why they were not mentioned at an earlier point in the protection visa application process and were rejected for that reason. The Tribunal also relied on the fact that the applicant’s wife had been able to remain living at the family home in China which, it said, was indicative of the fact that the applicant was not of any adverse interest to Chinese authorities or to creditors. In this respect, the Tribunal relied upon the fact that the applicant had remained in China for 11 months after his claim of detention before departing China on a valid passport issued in his own name in March 2013.
For those reasons the Tribunal rejected the applicant’s claims for protection in their entirety and therefore found that the applicant had no well-founded fear of being persecuted upon return to China on account of his political opinion or for any other reason. In addition, for the same reasons, the Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China that there was a real risk that the applicant will suffer significant harm to the purposes of sub-s.36(2)(aa).
There is no evidence before the Court to suggest that the Tribunal failed to observe any mandatory procedural requirement under the Act including ss.424A and 425. Further, there is no suggestion of any reasonable apprehension of bias or any other denial of procedural fairness.
The Tribunal’s reasons turned upon its findings of fact all of which appeared to be based upon its own assessment of the applicant’s evidence including the way in which that evidence was given before it. I cannot see any reasonable argument that any of those findings might be impugned upon judicial review.
Conclusion
For those reasons, I conclude that there is no identifiable argument that the Tribunal’s decision was affected by jurisdictional error. Together with the considerations referred to at [17] and [18] above, I am of the view that the application ought to be dismissed under r.44.12(1)(a).
At the hearing, Ms Johnson indicated that, if the Minister were successful she would ask for an order that the applicant pay the first respondent’s costs set in the amount of $3,416. The applicant indicated that he did not wish to make submissions in response to that. For those reasons, the application will be dismissed pursuant to r.44.12(1)(a) and the applicant will be ordered to pay the first respondent’s costs which I set in the amount of $3,416.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 29 May 2015
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