Tran v Minister for Immigration
[2006] FMCA 961
•26 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 961 |
| MIGRATION – Partner visa – Migration Review Tribunal. PRACTICE AND PROCEDURE – Summary dismissal – dismissal pursuant to Rules 44.12 or 13.10 of Federal Magistrates Court Rules 2001 – significance of judicial review – role of Court not a mere “rubber stamp” process – relevant principles to be applied when determining “arguable case” and/or summary dismissal – applicant non English speaking self represented – specific grounds raised in support of substantive application – whether arguable – whether reasonable prospect of success – dismissal pursuant to Rule 44.12 not mere process – absence of Court Book and relevant material to assist in judicial review process – not appropriate to summarily dismiss application – application fixed for final hearing. |
| Federal Magistrates Court Rules 2001, rr.13.10, 44.12 Federal Magistrates Act 1999, s.17A |
| Dey v Victorian Railways Commissioner (1948) 78 CLR 91 |
| Applicant: | HUU PHUOC TRAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 312 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 26 June 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2006 |
REPRESENTATION
| Applicant: | In person (with interpreter) |
| Counsel for the Respondents: | Ms E. Yong |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application for Summary Dismissal filed 9 June 2006 be dismissed.
The First Respondent shall file two copies and serve one copy of the Court Book on or before 28 July 2006.
The First Respondent shall file and serve written submissions on or before 18 August 2006 setting out the First Respondent's contentions of fact and law.
The Applicant shall file and serve written submissions, if any, on or before 1 September 2006 setting out the Applicant's contentions of fact and law.
The Application be fixed for hearing on 20 October 2006 at 10.15 am.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 312 of 2006
| HUU PHUOC TRAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for summary dismissal filed 9 June 2006. The First Respondent in the application for summary dismissal seeks orders that an application filed by the Applicant on 2 March 2006 be dismissed on the basis that it has not raised an arguable case for the relief claimed in accordance with Rule 44.12 of the Federal Magistrates Court Rules 2001 (the Rules). In the alternative, the First Respondent seeks an order that the application be dismissed on the basis that it discloses no reasonable cause of action and/or it is frivolous or vexatious in accordance with Rule 13.10 of the Rules.
In brief terms, the application by the First Respondent seeks orders from the court to either dismiss this application on the basis that there is no arguable case pursuant to Rule 44.12 or summary dismissal pursuant to Rule 13.10. The application filed 2 March 2006 sets out three grounds as follows:-
“1.The Second Respondent did not make a bona fide attempt to exercise their power. In particular the delegate was conferred with the task of determining whether the visa applicant is the spouse of the sponsor as required by subclause 100.221 but failed to discharge this obligation by failing to consider that the visa applicant satisfied the basic criteria for a spouse visa and that the visa applicant and the sponsor were living together or only temporarily apart. The Second Respondent should have regard to the subsequent history of a relationship for the purpose of testing or determining whether the relationship was genuine and continuing at the time of application.
2.The Second Respondent erred in law in failing to properly apply the criterion in Regulation 1.15A because in considering whether the Applicant as a Visa Applicant satisfied the criterion as at the date of application, the Second Respondent erred in concentrating its considerations to the findings of the delegate on two home visits in November 2004 in circumstances following a temporary separation. It was a material error that the Second Respondent failed to consider the provisions of subreg 1.15A(3) of the Regulations when forming an opinion as to whether the parties were in a married relationship at the relevant time.
3.The Second Respondent denied the Applicant procedural fairness by relying on irrelevant considerations in that there was no evidence or other material justifying any connection with the Applicant or the sponsor and the alleged activities of Ms Thi Thuy Tran and Mr Huu Thanh Le. The MRT should not act on mere suspicion or speculation nor should its decision be founded on irrelevant considerations.”
The applicant, who is self-represented and non-English speaking, appeared this day with the assistance of an interpreter. The First Respondent has relied upon a 10-page, 37‑paragraph ‘Outline of Submissions’ filed 15 June 2006, together with an affidavit sworn by Brian Choon Jin Wee on 9 June 2005.
It is sufficient to note in relation to the background that on 27 July 2003 the Applicant concurrently applied for a subclass 309 temporary partner visa and subclass 100 permanent partner visa. He was granted a temporary partner visa on 27 October 2003. On 22 November 2004, the permanent partner visa was refused by a delegate of the First Respondent. The Applicant then applied to the Migration Review Tribunal (the Tribunal) for review. The Tribunal, in a decision dated 2 February 2006, affirmed the delegate's refusal, and the Applicant then applied to this court for judicial review of the MRT decision.
Orders were made by a Registrar of this court on 29 March 2006 which required, amongst other things, the Applicant to file and serve any further and better particulars on or before 12 May 2006. It would appear that the Applicant has not filed any further particulars. The First Respondent, pursuant to the orders made by the court on
29 March 2006 filed the application for summary dismissal which I referred to earlier.
There are a number of preliminary observations which should be made in relation to this matter. The first is that the application of the First Respondent referred to earlier in this judgment, rather than being simply an application for summary dismissal, purports to be a further application that the Applicant's substantive application be dismissed on the basis that it does not raise an arguable case and accordingly should be dismissed pursuant to Rule 44.12 of the Rules. In any event, I shall deal with the application for summary dismissal, relying as it does on both Rules 44.12 and 13.10 of the Rules.
A further preliminary observation in my view needs to be made in relation to applications of this type. The substantive application is an application for judicial review. Judicial review must be undertaken independently and in my view should have regard to the fact that applicants frequently in this jurisdiction are self-represented and non‑English speaking. They have little or no understanding of courts, the law, and procedures. Hence, the task of judicial review in my view goes beyond what might normally be raised in inter partes proceedings.
The reason for that is obvious. It is judicial review of decisions made by respondents in the discharge of obligations this country has in relation to international conventions. The judicial review process itself should not be a mere formality or "rubber stamp" process. Summary dismissal proceedings and/or proceedings under the new rules, referred to as "show cause" proceedings, should not be regarded as a mere formality simply because an assessment has been made of arguments advanced for and on behalf of an Applicant which a party, that is, a respondent, does not regard as meritorious. An arguable case does not mean a case likely to succeed. I accept in this instance that "arguable" means what it says, that there are arguments that can be advanced for and on behalf of an Applicant.
In applications of this kind, it is often the case that the court does not have the benefit of what is described as a court book enclosing relevant documents including correspondence relied upon by the Tribunal. The absence of that material makes the task of judicial review difficult, as the court is unable to identify, as it is entitled to identify, errors which may arise of a procedural nature in relation to correspondence and invitations to attend Tribunal hearings, or to comment on certain material.
It is clear that in some instances there may indeed be a breach of the requirements of an Act sufficient to constitute an error of a kind which will attract judicial review. That is not to say that there will not be cases where clearly there is no reasonable prospect of success: for example, where Parliament has imposed arbitrary time limits or where the doctrine of res judicata, estoppel or Anshun estoppel may apply, or indeed where on the face of an application there is a mere challenge made to a Tribunal decision on the basis that the Applicant simply does not agree with the decision. However, none of those possibilities appear to me to exist in this application.
I accept that in considering the question of summary dismissal, the court is now bound by s.17A of the Federal Magistrates Act 1999 (the FMA) as amended as follows:-
“17A Summary judgment
(1)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.”
That provision is claimed to make the task of a summary dismissal somewhat easier for respondents in particular, in applications of this kind, given that it specifically does not require the court to find the application is hopeless or bound to fail for it to have no reasonable prospect of success. To that extent, I note the authority of Dixon J in Dey v Victorian Railways Commissioners (1948) 78 CLR 91 as follows:-
“The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
It is clear from that passage that the court considered the exercise of its inherent jurisdiction to stop what the court described as abuse of its process when it is employed for groundless claims. I accept that the remainder of the quotation set out in this judgment needs to be modified when considering summary dismissal, and in particular the application of Rule 13.10 of the Rules; the modification being pursuant to s.17A of the FMA.
However, the fundamental principles remain that the decision of a court to summarily dismiss, or even under the new rules to dismiss an application on the grounds that there is no arguable case, is a significant step for the court to take, as it effectively disentitles an applicant from presenting at a proper hearing further arguments which may be advanced in support of an application where, as in this case, a number of grounds are at least detailed in the application filed on 2 March 2006.
The First Respondent in this instance has indeed set out in some detail the basis upon which the court should make an order of summary dismissal, and/or arguments in support of the claim by the First Respondent that the application should be dismissed on the basis that the applicant has not discharged the onus of establishing an arguable case. To some extent, the mere fact that there are detailed submissions in relation to this application of itself provides some support for the notion that there is indeed an arguable case, or at the very least this could not be a case where the court on a summary basis would be prepared to determine that there is no reasonable prospect of success.
Without finally deciding the matter, as it is not appropriate to do so,
I am satisfied that the grounds in the application set out earlier in this judgment, and having regard to the submissions made for and on behalf of the First Respondent in the First Respondent's outline of submissions, that there is indeed an arguable case. I am further satisfied that it could not be concluded at this early stage that the Applicant has no reasonable prospect of success.
In my view, applications for summary dismissal or applications relying upon Rule 44.12 of the should not be regarded as mere process, and should not be in automatic response to applications which have been filed, albeit without the particulars or contentions one might expect from a party who is non-English speaking and self-represented. The court should exercise significant care and caution in relation to applications of this kind, and in my view should not too readily dismiss an application where, as I have indicated in this case, I am satisfied there are at least grounds set out in some detail which are arguable.
In my view, care should also be taken in the use made of Rule 44 of the Rules. To shift at an early stage the onus upon an Applicant to show cause why the application should not be dismissed on the grounds that there is no arguable case, is again a significant step. The problem in cases of this kind confronting the courts in an application at this early stage, is in part the difficulty encountered by the courts when dealing with self-represented, non‑English speaking applicants who are required to deal with difficult concepts of law. The problems are further compounded, as indicated earlier in this judgment, by the absence of a Court Book.
In this application, for the reasons given, I am satisfied that it is not appropriate to summarily dismiss the application; nor am I satisfied that the Court is able to conclude there is no arguable case and that Rule 44.12 should apply. It follows therefore that the application for summary dismissal filed 9 June 2006 should be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 26 June 2006
6