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MIGRATION - Application to review decision of Refugee Review Tribunal - summary dismissal - no reasonable cause of action.

SZBPA v Minister for Immigration [2004] FMCA 751 (28 October 2004)

SZBPA v Minister for Immigration [2004] FMCA 751 (28 October 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPA v MINISTER FOR IMMIGRATION
[2004] FMCA 751




MIGRATION - Application to review decision of Refugee Review Tribunal - summary dismissal - no reasonable cause of action.




Applicant:
SZBPA




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2082 of 2003




Delivered on:


28 October 2004




Delivered at:


Sydney




Hearing date:


28 October 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Mr D Jordan




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) That the proceedings be dismissed pursuant to Rule 13(10)(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.

(2) That the applicant pay the respondent's costs set in the amount of $2,800.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2082 of 2003

SZBPA



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for summary dismissal of proceedings commenced by the applicant seeking review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The applicant commenced his proceedings by application filed in this court on 7 October 2003 and filed, but apparently did not serve, an amended application on 5 March 2004. The application before the court is an application by the respondent seeking summary dismissal of the proceedings filed on 2 September 2004 supported by an affidavit from the solicitor for the respondent and written submissions.

3. The background to these proceedings is that the applicant, who is a national of India, claimed to fear persecution in India for reason of political opinion. He claimed that he was an active member of the Congress Party and that he had been subject to persecution from supporters of the Telugu Desam Party (the TDP). He claimed that not only was he persecuted because he belonged to the Congress Party and did not support the ruling TDP but also that the persecution was exacerbated because of his romantic attachment to the daughter of a leader of the TDP in his local area in India. He claimed that the father of his girlfriend did not approve of the relationship because he was a member of the Congress Party, threatened to kill him, arranged for him to be attacked and that thereafter he was hospitalised and threatened on a number of occasions.

4. The application was refused by a delegate of the respondent and the applicant sought review by the Tribunal. It is necessary, having regard to the nature of the proceedings today, to have regard to the procedure before the Tribunal. The application for review was filed by the applicant on 6 September 2002 with the Tribunal. In that application the applicant identified his home address and also an address for an authorised recipient to receive correspondence on his behalf.

5. On 9 September 2002 the Tribunal wrote to the applicant with preliminary information advising that he would be notified of a hearing in the future. On 28 May 2003 the Tribunal wrote to the applicant at his residential address and also care of the address for his authorised recipient notifying of a hearing to be conducted on 15 July 2003. The applicant responded to that invitation indicating that he wished to attend the hearing. However by subsequent letter dated 14 July 2003 the applicant's adviser indicated that the applicant was unable to attend the hearing due to sickness and provided a medical certificate. The Tribunal wrote to the applicant at the address provided and also to the adviser advising that the request for an adjournment had been granted and that the new hearing date would be 14 August 2003. The time and place were specified. It was also specified that the date would only be changed for good reason, that the applicant must contact the Tribunal if unable to attend and if he did not attend and the Tribunal did not postpone the hearing it could make a decision on the case without further notice.

6. The Tribunal reasons for decision were handed down on 11 September 2003. In those reasons the Tribunal recorded the invitation to a hearing and the fact that the applicant did not respond to the letter of 15 July 2003 or attend the hearing that had been rescheduled on 14 August 2003 and that in those circumstances the Tribunal member believed the Tribunal had fulfilled its obligation to provide the applicant with an opportunity to provide oral evidence and that it proceeded to make a decision on the basis of the material before it.

7. On the available material the Tribunal was not satisfied that the applicant had a well founded fear of persecution for reason of his membership of the Congress Party having regard to contrary independent country information. The Tribunal also noted that the claim in relation to antipathy from the family of the applicant's girlfriend suggested that his difficulties were personal and private differences. It was not satisfied that on the evidence before it the applicant had a well-founded fear of persecution in India for any of the reasons in the Refugee's Convention.

8. The application for review and the amended application for review filed by the applicant in these proceedings are in identical terms except that the amended application is described as `amended' and in addition to listing six generic unparticularised grounds states. "Based on the above ground I request your Honour to set aside RRT decision and grant me protection visa." The grounds are that there was a breach of natural justice, an error of law, that procedures were not observed, that there was an improper exercise of power, that there was no evidence or other material to justify the making of the decision and that the decision was otherwise contrary to law.

9. The respondent who was the applicant in these proceedings contends that the proceedings should be dismissed pursuant to Rule 13(10A) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action.

10. The power of the court to dismiss proceedings summarily is a power that should 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 cannot possibly succeed or that it has no reasonable hope of success: see General Steel Industries v The Commissioner for Railways of New South Wales (1964) 112 CLR 125 and SZBWF v MIMIA [2004] FMCA 83.

11. The question for the court to decide is not whether the applicant could probably succeed in his action but whether the material before the court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail and that it must be plain and obvious that the grounds for the application are unarguable or that it is a hopeless case with no chance of success.

12. In this case the applicant is unrepresented. I have considered the grounds in his amended application and also all of the material before me. The grounds themselves are expressed, as I have indicated, very generally. As they are not particularised, on their face they do not establish any reasonable cause of action.

13. Moreover, I have considered all of the material before me and I am satisfied on all of that material that there is nothing to indicate any basis to impugn either the decision or the procedures of the Tribunal. In particular, and this issue was addressed at some length by counsel for the respondent, the Tribunal was entitled in the circumstances to exercise its discretion under section 426A(1) of the Migration Act. Section 426A(1) provides that if the applicant is invited under section 425 to appear before the Tribunal and does not appear before the Tribunal on the day, time and place at which the applicant is scheduled to appear the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It is apparent on the material before me that there is no arguable case for contending that the Tribunal failed to comply with the prerequisites to the exercise of its discretion under section 426A. In particular there is no basis for contending that the requirements of section 425A in relation to the notice of invitation to appear were not met.

14. The Tribunal properly gave the applicant notice of the day, time and place at which he was scheduled to appear, not only in the initial hearing invitation but also in the subsequent letter of 15 July 2003. The notice was given by one of the methods specified in section 441A (by prepaid post) and the period of notice given in the invitation was within the requirements of the Act and Regulations in relation to the prescribed period of notice. The notice also set out a statement of the effect of section 426A. I note in that respect that the applicant had obtained a prior postponement of the hearing, that he had obviously received the letters that were sent to the correct addresses by the Tribunal, but that, as recorded in the Tribunal reasons for decision there is nothing to suggest that there was any response to the adjournment letter and there was no appearance by the applicant at the re-scheduled hearing. In these circumstances there is nothing in the material before me that would suggest that the decision of the Tribunal to proceed to exercise its discretion to make a decision without taking further action to allow or enable the applicant to appear before it, could in any way be impugned. The fact that the Tribunal proceeded in this way does not mean that there was no evidence or other material to justify the making of the decision.

15. The applicant does complain generally that there was a breach of the rules of natural justice. He does not explain the basis for this claim. This is an application to which section 442B of the Migration Act applies, but it is not necessary for me in these proceedings to consider the precise effect of that provision as there is nothing in the material before me to suggest any arguable basis for a claim of a lack of procedural fairness or a denial of natural justice.

16. Nor is there any tenable basis on the material before me to impugn the Tribunal reasons for decision. The Tribunal findings were open to it on the material before it. It had regard to evidence before it including the lack of relevant detail from the applicant, contrary country information and to the personal and private nature of an aspect of his claims. In those circumstances none of the applicant's unparticularised claims in relation to error of law, failure to comply with procedures, improper exercise of power, no evidence or that there was otherwise any jurisdictional error have any basis for success.

17. The applicant in oral submissions today tendered a letter that he had provided to the court in which he claimed that he had made valid claims in his application and amended application. However, the claims are unparticularised and do not on their face establish any basis for a claim of a jurisdictional error, not being related to the particular circumstances of the Tribunal procedures or the decision. The applicant also claims that it was not mentioned in the short minutes of order that his case would be dismissed and nor was he told about that. There is no mention in the consent orders that were made at the directions hearing on 5 February 2004 of the fact that it would be open to the respondent to file an application seeking summary dismissal of these proceedings. However, that is not a bar to these proceedings. The application for summary dismissal was filed on 2 September 2004. It has clearly been served on the applicant and he has had adequate time to address the application for summary dismissal.

18. He also complains that he has not been able to afford to hire a solicitor but that he intended to do so for the hearing which was listed for 3 May 2005. I note in that respect that he has had the benefit of advice under the pilot advice scheme. The absence of legal representation is not, in all the circumstances of this case, a basis for the court not to dismiss the application as disclosing no reasonable cause of action.

19. There is nothing in the material before me to indicate any basis to impugn the decision or procedures of the Tribunal. There is no substance to the grounds of review advanced in the applicant's application and amended application. No arguable case of error, let alone a jurisdictional error, is apparent in the Tribunal findings or its procedures on the material before me. In particular there is nothing to support the claim that there is any arguable case of denial of natural justice in the procedures. Having considered all of the material before me I am satisfied that the applicant's case is doomed to fail.

20. There is nothing to suggest that he would have any prospect on the basis claimed or indeed on any other basis of establishing a jurisdictional error in the Tribunal decision or its procedures. This case is clearly untenable on the material before the court. I am satisfied in the particular circumstances of this case that no reasonable cause of action is disclosed and also that it is proper that the proceedings should be dismissed under Rule 13.10(a) of the Federal Magistrates Court Rules.


RECORDED : NOT TRANSCRIBED

21. The respondent has been successful in obtaining summary dismissal of these proceedings which means that the applicant has, overall, been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal rule that costs should follow the event. Bearing in mind the nature of this and other similar matters,

I consider that the amount of $2,800 is appropriate. It has been necessary for there to be a hearing of the summary application but the costs are somewhat less than would have been incurred had the matter gone to a final hearing.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 5 November 2004
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