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MIGRATION - Review of Refugee Review Tribunal - refusal of a protection visa - applicant claiming political persecution in India - no substance to the judicial review application - application dismissed summarily as disclosing no reasonable cause of action.

SZDEK v Minister for Immigration [2004] FMCA 854 (22 November 2004)

SZDEK v Minister for Immigration [2004] FMCA 854 (22 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDEK v MINISTER FOR IMMIGRATION
[2004] FMCA 854




MIGRATION - Review of Refugee Review Tribunal - refusal of a protection visa - applicant claiming political persecution in India - no substance to the judicial review application - application dismissed summarily as disclosing no reasonable cause of action.




Federal Magistrates Court Rules 2001 (Cth)

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.424, 424B, 424C, 425, 441A

Applicant A135/2002 v Minister for Immigration [2003] FCA 708

Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677

Chung v University of Sydney [2001] FMCA 94

Kosi v Minister for Immigration [2003] FMCA 340

Lee v Minister for Immigration [2002] FMCA 279

Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194

SZBWF v Minister for Immigration [2004] FMCA 83

Xie v Immigration Department [1999] FCA 365

Yo Han Chung v University of Sydney [2002] FCA 186

Applicant:
SZDEK




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG961 of 2004




Delivered on:


22 November 2004




Delivered at:


Sydney




Hearing date:


22 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:


Ms J Bautista

Sparke Helmore




INTERLOCUTORY ORDERS

(1) The application for judicial review is dismissed summarily, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG961 of 2004

SZDEK



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me a motion of which notice was given on 24 August 2004. By the motion the Minister seeks orders summarily dismissing with costs an application for judicial review which in turn sought review of a decision of the Refugee Review Tribunal ("the RRT") made on 11 February 2004 and handed down on 4 May 2004. The Minister relies upon her motion and an affidavit by Althea Jane Houlton filed on 24 August 2004. The Minister also relies upon the court book filed on 31 May 2004. I received both the affidavit and the court book as evidence for the purposes of today's hearing.

2. The Minister seeks that the judicial review application be summarily dismissed on two bases. The first is that the application fails to disclose a reasonable cause of action. The second is that the applicant has failed to comply with an order of the Court.

3. The relevant background facts and circumstances are set out in written submissions prepared on behalf of the Minister by Ms Bautista. I adopt paragraphs 3-9 of those written submissions as background for the purposes of this judgment:

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") filed in the Federal Magistrates Court of Australia on 2 April 2004. On 20 July 2004, the respondent received a document from the applicant entitled "amended application" under s.39B of the Judiciary Act.

Background

The applicant arrived in Australia on 16 July 2003.[1] On 8 August 2003, he applied for a protection visa.[2] On 23 September 2003, a delegate of the respondent refused the application[3] and on 15 October 2003, the Applicant applied to the RRT for review of that decision. On 4 March 2004, the RRT handed down its decision to affirm the Delegate's decision refusing the applicant a protection visa.

Applicant's claims

The applicant's claims are contained in his application for a protection visa[4] and in his application for review lodged on 15 October 2003.[5]

The applicant is a citizen of India who claimed that he was threatened, attacked, arrested, and had false cases filed against him because of his political activities in the Congress Party. He was released from custody upon payment of a bribe to the police. The applicant openly criticised the police and the ruling political party together with other members of the Congress Party. As a result, the applicant was attacked, arrested and kidnapped.

RRT findings

The RRT found that the applicant's claims were "vague",[6] internally inconsistent[7] and were not supported by any details or documentary evidence.[8] Accordingly, it did not accept that the applicant had a well-founded fear of persecution for a Convention reason and was unable to be satisfied that the applicant's claims were genuine.[9] Furthermore, the RRT found that the applicant's failure to respond to the RRT's request for additional information indicated that he did not have a genuine fear of persecution.[10]

The RRT wrote to the applicant on 17 December 2003 pursuant to s.424 of the Migration Act 1958 (Cth) ("the Migration Act") requesting that he provide further information about his claims of harm.[11] This letter was sent to both the addresses provided by the applicant in the application for review, and complied with ss.424(3)(a), 424B and 441A of the Act. As the applicant failed to provide the additional information within the time specified in the invitation, he was no longer entitled to appear before the RRT: ss.424C(1), 425(2)(c) and (3) of the Act.

The RRT proceeded to determine the matter without inviting the applicant to a hearing as it was entitled to do: s.425(2)(c).

4. The judicial review application was instituted by way of application filed on 2 April 2004. On 8 June 2004, the applicant was ordered, by consent, to file and serve on the respondent an amended application giving particulars of each ground of review relied upon as well as any evidence upon which the applicant proposed to rely no later than 20 July 2004. The applicant did file an amended application on 20 July 2004. Nevertheless, Ms Bautista submits that the application should be dismissed for non-compliance as the asserted jurisdictional errors in the amended application are not particularised.

5. I accept that the asserted jurisdictional errors in the amended application are not particularised but I would not, for that reason alone, dismiss the application. The applicant is not assisted by a lawyer and he has made an attempt to comply with the Court's order for an amended application within the time allowed. The amended application is an improvement on the original formulaic application. However, the amended application has no greater prospect of success than the original application.

6. That brings me to the primary ground supporting the Minister's motion. The judicial review application should be dismissed as disclosing no reasonable cause of action. I agree with and adopt paragraphs 10-19 of Ms Bautista's written submissions:

Part 4, Rules 4.01 and 4.02 of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules") relevantly provide that an application to the Court must state precisely and briefly the orders sought and the basis upon which they are sought. Rule 4.05(1) provides that an applicant must file an affidavit in support of an application, whether seeking final, interim or procedural orders.

Part 13, Rule 13.10(a) of the Federal Magistrates Court Rules deals with the dismissal of a proceeding or claim for relief if that proceeding or claim discloses no reasonable cause of action.

An order summarily dismissing proceedings should only be made where there is no real question to be tried or where the claims are clearly untenable and cannot succeed: Lee v Minister for Immigration [2002] FMCA 279 (15 November 2002) at [24] per Hartnett FM; Applicant A135/2002 v Minister for Immigration [2003] FCA 708 (9 July 2003) per Finn J at [3]-[6]; Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677 at [1] per Selway J; and Xie v Immigration Department [1999] FCA 365 at [20] per Carr J.

The question the Court must decide is 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. 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: SZBWF v Minister for Immigration [2004] FMCA 83 at [25], Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194.

In circumstances where an applicant is self-represented, it has been held that the Court should independently consider whether an arguable case based on the material could be made out by the applicant: Chung v University of Sydney [2001] FMCA 94 at [14] per FM Driver; upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186.[12]

The amended application before the Court pleads unparticularised grounds of review. No affidavit has been filed in support of the amended application.

The first ground raised in the amended application alleges that the RRT did not properly consider the applicant's claims of persecution on the basis of his membership of a particular social group and involvement with politics in India. This allegation is misconceived for two reasons. Firstly, there is nothing in the evidence he gave before the RRT to suggest a claim that he was a member of a particular social group. Secondly, the RRT expressly considered and made findings in relation to the applicant's claims of persecution on the basis of his political opinion in India as it was required to do. No error is revealed in the RRT's approach or findings.

The second ground raised in the amended application alleges that "the RRT's satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief". No particulars are provided in support. The RRT plainly considered the applicant's claims and the evidence before it and made findings in relation to those claims. It found that the applicant was not owed protection obligations because the RRT found that his evidence was "vague, internally inconsistent and lacked supporting material". No error is revealed in this approach.

The final ground that is raised is that the RRT did not observe the Migration Act "properly". In the absence of particulars this ground must fail.

There is no substance to any of the grounds of review advanced by the applicant in the amended application. In all the circumstances of this case, the amended application does not raise any arguable case or any real question to be tried. Accordingly, it discloses no reasonable cause of action and should be dismissed.

7. I accept, based upon the evidence of Ms Houlton and the court book, that the Minister has met the high standard required for summary dismissal upon this ground. The protection visa application was doomed to fail before the RRT as the applicant did not respond to a notice sent to him under s.424 of the Migration Act.

8. The delegate, like the presiding member of the RRT, found the claims in support of the protection visa application to be general and vague. I asked the applicant why he did not respond to the s.424 notice sent to him. He did not answer directly but told me that if I gave him more time he would be able to get some more documents from India. The RRT regarded as relevant for its determination of the protection visa claim that the applicant did not respond to the s.424 notice.

9. The applicant has made no complaint against that finding expressly either in his original or his amended application. I asked the applicant what was his concern, if any, with the RRT decision. His answer was to the effect that he feared harm should he return to India. That leads me to the view that the applicant has no concern with the RRT decision apart from the outcome. The grounds asserted in the amended application have no substance and the application based upon it is doomed to fail.

10. In the circumstances, I will dismiss the application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.

11. On the issue of costs, I am satisfied that costs should follow the event. Ms Bautista has assessed the Minister's costs on a party/party basis as not less than $3,000. The applicant has referred to his impecuniosity but that is not a reason for the Court to refrain from making a costs order. I am satisfied that the Minister has on a party/party basis incurred costs reasonably and properly to an amount of at least $2,500.

12. I will therefore order that the application for judicial review is dismissed summarily pursuant to rule 13.10(a) of the Federal Magistrates Court Rules and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 November 2004


--------------------------------------------------------------------------------

[1] Court book ("CB") 13

[2] CB 1-24

[3] CB 41-45

[4] CB 1-24

[5] CB 46-49

[6] CB 67.10

[7] CB 68.7

[8] CB 67.8

[9] CB 69.2

[10] CB 69.3

[11] CB 54-55

[12] See also: Kosi v Minister for Immigration [2003] FMCA 340 (8 August 2003) per FM Driver, where immigration proceedings were summarily dismissed on the basis that no reasonable cause of action was disclosed
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