SZWBH v Minister for Immigration
[2015] FCCA 436
•26 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 436 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 Migration Act 1958 |
| MZAPO v Minister for Immigration & Anor [2015] FCCA 96 Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 WZAPN v The Minister for Immigration & Border Protection [2014] FCA 947 |
| Applicant: | SZWBH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 262 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 |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Ms Given |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be summarily dismisseed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 262 of 2015
| SZWBH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is a matter before the Court's jurisdiction under s.476 of the Migration Act 1958 and relates to a decision of the Tribunal delivered on 17 January 2015. The grounds of the application are as follows:
The RRT has failed to evaluate, consider and make a finding in respect of one of my central claims that I am at risk of harm due to my cousin and her husband being shot by the Army and the abduction of my Aunt and subsequent problems for me. This claim expresses and implies that I would be harmed by the Sri Lankan authorities.
The RRT has failed to assess and consider that the one of my central claims and the one of my central claims cumulatively with my race and as a failed asylum seeker on my arrival would palce me at risk or not in respect of this claim in terms of s.32(2)(a) and (aa) in its decision.
Therefore the RRT has not made any finding as to whether I would be harmed in respect of this claim in terms of s.32(2)(a) and s.32(2)(aa) in its decision.
Therefore the RRT declined its jurisdiction to me.
At the commencement of the hearing, the Court raised with the applicant that the ground formulated failed to identify a proper or arguable jurisdictional error and the applicant was invited to identify the errors that the applicant asserted. The applicant raised his concern as to the Tribunal not taking into account the death of his younger brother and that the Tribunal did not address his claims.
The Court identified to the applicant that it was minded to deal with the matter summarily in light of the notification that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. I take into account in respect of the summary dismissal power in s.17A of the Federal Circuit Court Act 1999 and r.13.10 of the Federal Circuit Court Rules 2001 the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118:
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.
In this case, the applicant applied for a Protection (Class XA) visa under s.65 which was applied for on 13 December 2012 and refused by the delegate on 19 August 2013.
The applicant appeared before the Tribunal to give evidence and present arguments and was represented by a migration agent. At the conclusion of the hearing, the applicant was allowed an opportunity to file further submissions, and particularly to address the matters put to the applicant in relation to the country information. The Tribunal identified the criteria that had to be applied in relation to the application and found the applicant to be a citizen of Sri Lanka and addressed the review on the basis that that was his country of reference.
In relation to the consideration of whether the applicant had a well-founded fear of persecution, the claims of the applicant were carefully set out. The claims of the applicant identified by the Tribunal include the issue the applicant sought to raise in respect of his cousin and her husband being shot by the Sri Lankan Army on 12 March 2008. In the statutory declaration of 7 December 2012, the applicant identified that he believed that it was a matter of time before the police would cause him serious harm and that the police had threatened to harm him.
The applicant informed the Tribunal that he had never supported the LTTE and that he had never been questioned about that. The applicant, when asked whether there was any other reason why he feared returning to Sri Lanka, his main concern was behaviour of police and that they might shoot him and said that he was concerned the police would detain him and question him on his return or try and extort money from him. Apart from that, he said he had no other fears. The applicant identified there were no warrants for his arrest and that he was simply a passenger on a boat and not involved in people smuggling.
The applicant's fears of persecution were assessed by the delegate on the basis of him being a Tamil in relation to political opinion and imputed support for the LTTE and membership of a social group, namely, a Tamil failed asylum seeker or a Tamil man suspected of associating with or supporting LTTE. The Tribunal carefully set out the country information that was put to the applicant and relevantly found, having considered the information, that the applicant does not accept the applicant will face harm in Sri Lanka simply on the ground of being a Tamil. Nor, the Tribunal found, was he a person who would face harm because of his support, actual or imputed, of the LTTE, or because he is otherwise a threat to the integrity of Sri Lanka as a single state. The Tribunal noted that the information does not suggest the applicant has a well-founded fear of persecution for reason of his Tamil ethnicity, and the Tribunal found the applicant does not have a well-founded fear of persecution in respect of that reason.
The Tribunal found that the applicant had never been a member of the LTTE and found that he had no fear of persecution upon returning to Sri Lanka for a reason of imputed support for the LTTE and found that there is no well-founded fear of persecution in that respect. The Tribunal found that it was not satisfied there is a real chance the applicant will be seriously harmed by reason of imputed anti‑government political opinions, including LTTE, if he was returned to Sri Lanka. The Tribunal found that the applicant does not have a well-founded fear of persecution for that reason. The Tribunal turned to whether, as a member of a particular social group, the applicant had a well-founded fear, and found:
43. I do not accept that one or more of the five Convention reasons, including membership of a particular social group namely being a Tamil failed asylum seekers who left the country illegally will be the essential and significant reason for the applicant being harmed if he returns to Sri Lanka. I find that the applicant does not have a well-founded fear of persecution for this reason.
The Tribunal found that the applicant would be exposed to the application of the general law under the Immigrants and Emigrants Act 1949 and, materially, made findings that it was not a discriminatory or arbitrarily applied law and that it was a law of general application.
The Tribunal identified that it had considered the fears individually and cumulatively and it found that the applicant did not have a real chance of serious harm for any of the reasons claimed or cumulatively arising on the evidence. And the Tribunal concluded:
44. …I am not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that I am not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.
The Tribunal turned to the question of complementary protection and made a finding as follows:
47. Having considered these circumstances I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
The Tribunal also addressed the submissions that were received from the applicant and concluded that the Tribunal is not satisfied the applicant is a person in respect of whom Australia has a protection obligations under the Refugees Convention and, therefore, the applicant does not satisfy the criteria under s.36(2)(a) of the Act. The Tribunal found it was not satisfied that the applicant was a person in respect of whom Australia has an obligation under 36(2)(aa) of the Act and in those circumstances, the Tribunal affirmed the decision not to grant a Protection (Class XA) visa.
It is clear, from the decision of the Tribunal, that it took into account the claims of the applicant and that the findings it made were open to the Tribunal and it is clear that the Tribunal assessed the claims in relation to being a failed asylum seeker and made findings in relation to the absence of significant harm in relation to the applicant being returned to Sri Lanka.
The solicitor for the respondent properly drew the Court's attention to the fact that in the past there has been a practice of preparing Court bundles and that sometimes those Court bundles can be of assistance in particular cases. The solicitor for the first respondent did not seek to amend the response which identified the want of jurisdiction. Taking further steps in the proceedings will give rise to the incurring of further costs for the parties and occupy further hearing time of the Court. In circumstances where the Court is clearly satisfied that the proceedings are doomed to failure, it is not in the interests of the parties or in the interests of the administration of justice to adjourn for further hearing a matter that clearly appears on its face doomed to failure.
The solicitor for the first respondent also properly drew my attention to the decision in WZAPN v The Minister for Immigration & Border Protection [2014] FCA 947 and, for the same reasons as this Court has given in an earlier decision, MZAPO v Minister for Immigration & Anor [2015] FCCA 96, this case can clearly be distinguished from the decision in WZAPN. In that case, there was a finding as to the risk of arbitrary detention. There is no such finding in this case in this case the Tribunal has clearly turned its mind to whether the law is one which was applied in an arbitrary or discriminatory manner and has found that it is a law of general application.
Materially, this is a case where the decision WZAPN can also be distinguished given the finding that there is no well-founded fear of persecution for a conventional reason. In those circumstances, that decision which has been the subject of a grant of special leave to appeal to the High Court, has no application in the present case.
Further, I am satisfied that even if there was an error of the kind identified in WZAPN, the cumulative findings made in the present case adverse to the applicant, mean that the application is still doomed to failure and there is no utility in these circumstances, in adjourning the proceedings and incurring further costs and delay with, in this position, a matter that is clearly doomed to failure.
I am satisfied the proceedings have no reasonable prospect of success. The application is summarily dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 3 March 2015
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