SZWAV v Minister for Immigration

[2015] FCCA 444

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 444

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – application summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999

Federal Circuit Court Rules 2001

Migration Act 1958

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZWAV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 210 of 2015

Judgment of: Judge Street

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Senanayake

Solicitors for the Respondent: DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 210 of 2015

SZWAV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

As Corrected

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision by the Tribunal on 22 December 2012, affirming a decision of the delegate made on 8 April 2014 refusing the grant of a Protection (class XA) visa.  The application is, in fact, one in respect of which an extension of time is required under s.477, even though the application has not, on its face, correctly identified the need for that extension.

2. The grounds identified in the application are as follows:

   1. The Refugee Review Tribunal deprived me of Natural Justice.

   2. The Tribunal acused me of being uncredible.

   3. The First Respondent may have breached my privacy to information by releasing my name and other confidential details on the departmental website as part of the January 2014 Detention Statistics for a period of several days before 19 February 2014.

3. At the commencement of the hearing, the Court expressed concern as to whether or not the grounds identified any reasonably arguable jurisdictional error, and whether the proceedings were doomed to failure.  On the return date, the application identifies the Court may hear and determine all interlocutory or final issues, and/or may give directions for the future conduct of the proceedings, and in light of the fact that the proceedings appeared doomed to failure, the Court invited the applicant to identify whether there were any grounds of jurisdictional error that the applicant could identify.

4. The applicant indicated that he was emotionally unstable at the time of the questioning, and that the questions were ones which were framed in a way in which the delegate was seeking to obtain answers for a particular outcome, and that the case had been heard at the same time as a case relating to the applicant’s mother.  In respect of the statutory power under s.17A Federal Circuit Court Act 1999 and r.13.10 Federal Circuit Court Rules 2001, I take into account the principles and caution expressed in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 in relation to the Court’s jurisdiction under s.17A and rule 13.01:

   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[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. 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[48]:

   "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 Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] 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[51], 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."

   There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

   25. S.31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the Court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

   …

   59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

   60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

5. In the decision of the Tribunal, the applicant was found to be a citizen of China, and his claims were assessed on that basis.  The Tribunal set out the applicant arrived in May 2007, holding a student visa, which was valid until 15 December 2009.  The Tribunal noted that the student visa was cancelled in September 2008.  The Tribunal noted that the applicant was the beneficiary of an application lodged by his mother for a protection visa on 15 May 2008, which application was refused, and the delegate’s decision was affirmed on 13 January 2009. 

6. The Tribunal recorded the applicant was located working unlawfully in the community in February 2011. The Applicant was granted a bridging visa with the departure arrangements for the following day. The applicant did not depart, and was located again on 27 June 2013, and on this occasion he was detained. There was a further Ministerial intervention and the applicant was informed on 21 August 2013 that his request had not been considered, and the Tribunal referred to the bar imposed by s.48 of the Migration Act1958, and identified that it was in these circumstances the applicant then applied for a Protection visa on 19 September 2013, and that the applicant attended an interview on 7 April 2014, and the delegate refused to grant the visa on 8 April 2014.

7. The Tribunal identified that the applicant’s mother also lodged a protection visa application, which was refused on 5 August 2014, which had been the subject of an appeal lodged within the Court against the decision.  The applicant appeared before the Tribunal on 5 December to give evidence and present arguments.  The Tribunal carefully set out the summary of claims made by the applicant, and turned to the consideration of those claims. 

8. Materially, the Tribunal found:

   18. The Tribunal did not find the applicant to be a credible, truthful, or reliable witness in relation to matters central to, and related to, his claims. In making this finding, the Tribunal has considered his changing claims and details of claims; evidence inconsistent with that given in the first proceedings (in which he was an applicant) and other inconsistencies; non-credible evidence; omissions to mention claims in his protection visa application, in his letter seeking Ministerial Intervention, and at the compliance interview; changing evidence; and his claim to have become an active Christian after the delegate refused his case in 2014, despite having lived in Australia for seven years and not having been a committed, active Christian during that time.

9. The Tribunal carefully set out its reasoning in relation to the concerns that it had in relation to the applicant’s credibility. The Tribunal carefully identified the responses of the applicant to matters put to the applicant by the Tribunal and materially, did not accept that the agent was responsible for the provision of false information.  The Tribunal expressed its concern about the inconsistent and changing evidence of the applicant, and carefully addressed in detail the applicant’s alleged claims and identified the reasons that undermined the applicant’s claims.

10. The Tribunal found that the applicant’s evidence was not persuasive, and in light of the problems with the applicant’s evidence, he appears to have fabricated a claim to be an active Christian, who will be active upon return after the delegate his claims.  The Tribunal recorded that this undermined the applicant’s credibility and his claim to be, and to have been a Christian.  The Tribunal found that the applicant and his mother were not credible witnesses, and found that the applicant was not reliable and truthful. 

11. The Tribunal proceeded to make findings in relation to the applicant’s claims, and found that the applicant would return to living with his family, who had not been persecuted as claimed, and that there was no reason to believe that he would be subjected to harm.  The Tribunal found it was not satisfied that the applicant had a well founded fear of persecution in China for a conventional reason, if he returns now or in the reasonably foreseeable future.  The Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention, and the Tribunal found that it was it was not satisfied that the applicant met the criteria under s.36(2)(a).

12. The Tribunal also addressed the consideration of complementary protection, and considered the applicant’s circumstances individually and cumulatively, and found no basis for the applicant’s claims to fear of significant harm.  The Tribunal said it was not satisfied that there was any substantial grounds for believing that it is a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm, therefore the Tribunal found the applicant does not satisfy the criteria under s.36(2)(aa).  The Tribunal found that it was not satisfied the applicant is a person in respect to whom Australia has protection obligations under the Refugees Convention, and affirmed the decision not to grant the applicant a protection visa.

13. The findings made by the Tribunal were open to it, and the Tribunal identified a proper basis for those findings.  This is not a Court of general review.  To the extent that it’s suggested in ground 1 that the applicant was deprived of natural justice, I am satisfied from the reasons of the Tribunal the Tribunal brought an independent and impartial mind to the determination of the review, and there is no substance in the general allegation identified in ground 1.

14. As to ground 2, it was open to the Tribunal to make findings of credit in respect of the applicant, and the Tribunal has identified reasons that support those findings of credit.  It cannot be said that the findings lack an evident and intelligible justification. 

15. To the extent that the applicant asserts some breach of privacy under ground 3, that is not a matter that gives rise to any jurisdictional error.  The matters that were raised in relation to the concurrent hearing with his mother are not ones that give rise to any jurisdictional error, and it was a matter for the Tribunal to evaluate the applicant’s evidence.

16. There is no substance in the proposition that the Tribunal, given the detailed reasoning set out, did not approach the review hearing and the review decision with an independent and impartial mind. In these circumstances the proceeding is clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  In these circumstances the application for an extension of time, even if this Court were to exercise its powers to permit an appropriate amendment, has no merit and this is not an appropriate case, in those circumstances, to grant any such amendment, and the application for an extension of time has no reasonable prospects of success. 

17. I take into account in these circumstances that the proceedings are defective and are not proceedings that have any reasonable prospect of success if an amendment were permitted.  In those circumstances the proceedings are summarily dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 March 2015

CORRECTIONS

Representation amended by deleting “Solicitors for the Applicant: Edmund Rice Centre.”