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MIGRATION - Application to review decision of Refugee Review Tribunal - summary dismissal.

NBAV v Minister for Immigration [2004] FMCA 577 (31 August 2004)

NBAV v Minister for Immigration [2004] FMCA 577 (31 August 2004)
Last Updated: 7 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBAV v MINISTER FOR IMMIGRATION
[2004] FMCA 577



MIGRATION - Application to review decision of Refugee Review Tribunal - summary dismissal.



General Steel Industries and The Commissioner for Railways New South Wales (1964) 112 CLR 125

SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:
NBAV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1014 of 2004



Delivered on:


31 August 2004



Delivered at:


Sydney



Hearing date:


31 August 2004



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Nil



Solicitors for the Respondent:


Australian Government Solicitors



ORDERS

(1) That pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules the applicant's application be dismissed as disclosing no reasonable cause of action.

(2) That the applicant pay the respondent's costs fixed in the amount of $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1014 of 2004

NBAV


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. In these proceedings the respondent seeks summary dismissal of an application that was brought by the applicant seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the respondent not to grant him a protection visa. The respondent filed the application seeking summary dismissal on 23 June 2004 on the basis that the proceedings disclosed no reasonable cause of action. It is sought that the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

2. The background to these proceedings is that the applicant is a citizen of China who arrived in Australia on 26 February 2003 on a visitor visa. He applied for a protection visa on 10 March 2003 which was refused. He sought review by the Tribunal.

3. In connection with his initial application for a protection visa, the applicant acknowledged that he was advised that he had little chance of success. In his accompanying submission his agent stated that the applicant was determined to proceed even though he was told that his statement "lacks solid evidence to be supported so as to convince the delegate to make a favourable decision in his case". The decision of the delegate refusing the application recorded that the applicant provided no evidence whatsoever to substantiate his claim of suffering harm or mistreatment in the Peoples Republic of China of sufficient gravity as to constitute persecution in terms of the Refugees Convention.

4. The applicant had claimed that he faced persecution because of his belief in Falun Gong. The Tribunal wrote to the applicant and his migration agent on 29 October 2003 stating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. The applicant was invited to attend a hearing on 10 December 2003. He accepted the invitation but did not attend the hearing. The Tribunal handed down its decision on 8 January 2004 affirming the decision not to grant the protection visa.

5. The Tribunal accepted that the applicant was a national of the Peoples Republic of China. It also took into account and accepted independent information indicating that certain Falun Gong practitioners had been subjected to persecution in the past and that some may be at risk of ongoing persecution in the Peoples Republic of China. However, it found that on the basis of the information provided by the applicant, it was unable to be satisfied that he had a well-founded fear of persecution for reason of his belief in or practice of Falun Gong.

6. In the absence of an opportunity to question the applicant about his beliefs and practices, the Tribunal was unable to reach the necessary state of satisfaction that he was, in fact, a Falun Gong practitioner prior to his departure from China. The Tribunal elaborated on the generality of the applicant's claim and the areas in which there was an absence of detail and stated that, despite having been notified by the Tribunal that his case could not be decided favourably on the available information, the applicant had not provided sufficient information to enable the Tribunal to be satisfied as to central factual matters.

7. For these reasons the Tribunal rejected the applicant's claim to be a refugee, finding that his fear of suffering serious harm or persecution in China by reason of his belief in or practice of Falun Gong was not well founded.

8. The applicant filed an application in this court on 9 February 2004 seeking review of the Tribunal decision. It claimed, very generally, without particularisation that the Tribunal erred as follows:

Refugee Review Tribunal (RRT) found that the applicant had failed to satisfy the basic requirement for the grant of the visa. In making this finding RRT ignored parts of the applicant's claims in the statement attached to her (sic) application for the relevant visa submitted. In doing so, RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give rise to jurisdictional error.

9. At a directions hearing on 5 March 2004, the matter was transferred to this Court, the proceedings having commended in the Federal Court. Orders were made by consent that the applicant file and serve an amended application, setting out in full the grounds relied upon together with any affidavit material to be relied upon on or before

26 April 2004.

10. An amended application was filed on 23 April 2004. It recited the applicant's claims and contended that the refusal decision was not fair in that "it disables the applicant to remain in Australia and to avoid being persecuted in China". It continued that if granted the visa the applicant could remain in Australia and avoid being persecuted. It was claimed that the effect of the refusal was "to cause the applicant serious fear, time waste and potential persecution by the Chinese Government", given that the applicant "had spent a lot of time, energy and effort". It was contended that the delegate of the Minister (sic) when making the decision in the protection visa application should have taken into account the above circumstances.

11. A further amended application was filed on 15 June 2004. The applicant confirmed in the hearing today that he had filed this application which is headed with the correct initials of NBAV although internally it refers to NBCU. This application repeats the applicant's claim and again claims that the decision of the Tribunal in this case is unfair, as he would be severely persecuted by the government if he returned to China. It contends that the Tribunal should consider that he had spent what he had in China to come to Australia, all his money and energy would be in vain and he would be facing misery again.

12. In the hearing today the respondent (the applicant for summary dismissal) elaborated on written submissions. The applicant did not seek to make any submissions in relation to the application for summary dismissal.

13. The power of the court to dismiss proceeding summarily is a power to be exercised only in clear cases. The court should be satisfied that the application is such that there is no real question to be tried, that the case is clearly untenable and could not possibly succeed or that it has no reasonable hope for success. (See General Steel Industries and The Commissioner for Railways New South Wales (1964) 112 CLR 125 and the other cases cited in SZBWF v MIMIA [2004] FMCA 83.)

14. I have considered the grounds in the applications filed by the applicant as well as all the material before me in considering whether the case should be dismissed summarily on the basis that no reasonable cause of action is disclosed. Insofar as the application contends generally without elaboration that the Tribunal ignored parts of the applicant's claims or failed to take into account relevant considerations, this does not establish any question to be tried on the material before me. There is no arguable case that this occurred.

15. There is no particularisation of this claim and there is nothing in the material before me to suggest that the Tribunal erred in a manner contended or that in any way could be said that it reached the decision without reasonable or rational foundation. The Tribunal correctly summarised and referred to the applicant's claims made in connection with his protection visa application. The Tribunal made findings that, on the information before it, it was unable to reach the necessary state of satisfaction that the applicant was a Falun Gong practitioner. Such findings were open to the Tribunal for the reasons it gives on the material before it, particularly the absence of detail in the applicant's claims.

16. The first amended application filed on 23 April 2004 complained generally that the decision was not fair. While it refers to the decision of the delegate, the decision that is before the Court for review is the decision of the Tribunal and, indeed, the relief sought in that application is that the Tribunal reconsider the application. The final amended application also contends that the decision made by the Tribunal is unfair on the basis that the applicant will be persecuted in China and has expended time, money and energy in vain. Such ground does not establish any basis for a claim of a lack of procedural fairness or other reviewable error.

17. The applicant takes issue with the Tribunal's findings of fact. However merits review is not available in this court. MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. There is nothing in the material before me to suggest that there is any basis for a claim that there has been any lack of procedural fairness. The applicant was properly invited to a hearing, given an opportunity to address issues and make claims to the Tribunal. He accepted that invitation but did not attend the Tribunal hearing.

18. There is nothing in the material before me to indicate any basis to impugn the decision of the Tribunal. There is no substance to the grounds of review advanced and no arguable error, let alone a jurisdictional error, is apparent in the Tribunal procedures or findings. I am satisfied that the case raised by the applicant in each of the applications is doomed to fail. There is nothing in the material before me to suggest that the applicant would have any prospect of success on any basis. There is no real question to be tried and the applicant's case is clearly untenable on the material before the Court.

19. I am satisfied in the particular circumstances of this case that no reasonable cause of action is disclosed. The proceedings should be dismissed under Rule 13.10(a) of the Federal Magistrates Court Rules.


RECORDED : NOT TRANSCRIBED

20. The respondent seeks that the applicant pay the costs of these proceedings. There is nothing in the circumstances before me to suggest that there is any reason for departure from the normal rule that costs should follow the event. Bearing in mind the nature of this and other similar matters and the basis on which the application was dismissed I consider that the sum of $3,000 is appropriate and that costs should be fixed in that amount under the Federal Magistrates Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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