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MIGRATION - Application to review decision of Refugee Review Tribunal - summary dismissal - no reasonable cause of action - applicant notified of respondent's intention to seek summary dismissal - non-appearance by applicant.

SZCHQ v Minister for Immigration [2004] FMCA 681 (20 July 2004)

SZCHQ v Minister for Immigration [2004] FMCA 681 (20 July 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCHQ v MINISTER FOR IMMIGRATION
[2004] FMCA 681




MIGRATION - Application to review decision of Refugee Review Tribunal - summary dismissal - no reasonable cause of action - applicant notified of respondent's intention to seek summary dismissal - non-appearance by applicant.




Migration Act 1958

Culture International Pty Limited v Skols (1991) 32 FCR 275 at 279

Hunter v Chief Constable of the West Midlands Police (1982) AC 529

Applicant:
SZCHQ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ2889 of 2003




Delivered on:


20 July 2004




Delivered at:


Sydney




Hearing date:


20 July 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:


Blake Dawson Waldron




ORDERS

(1) That the application filed on 24 December 2003 is dismissed there being no reasonable cause of action disclosed.

(2) That the applicant pay the respondent's costs set in the amount of $1,500 pursuant to the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ2889 of 2003

SZCHQ



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is a notice of motion filed by the respondent on 19 May 2004, seeking dismissal of proceedings initiated by the applicant on 24 December 2003 in respect of a decision of the Refugee Review Tribunal, which was handed down on 20 November 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The respondent seeks that the application be dismissed for a number of reasons. First, on the basis that the applicant failed to comply with directions made at a directions hearing on the 13 February 2004, that he file and serve any amended application providing proper particulars of the grounds relied upon and any evidence upon which he intended to rely on or before 30 April 2004. Second, on the basis that no reasonable cause of action is disclosed in the application that was filed in this court by the applicant on 24 December 2003, and third, on the basis that the proceedings are an abuse of process of the Court.

3. The applicant is not present today. However, I am satisfied, for reasons that I will explain, that he has been given appropriate notice of these proceedings. He has not attended despite being given the opportunity to do so.

4. The applicant lodged an application for a protection visa on 8 November 2002. That application was refused by a delegate of the respondent on 3 December 2002. The applicant lodged an application for review with the Tribunal on 6 January 2003. The Tribunal wrote to the applicant on 15 September 2003 inviting him to attend a hearing. The invitation was sent to the only address provided in his review application, the mailing address, and also to the residential address which it appears was obtained from the protection visa application or the Department file.

5. The material before the Court indicates that while the invitation to hearing sent to the residential address contained on the Departmental file was returned to the Tribunal, the letter sent to the mailing address (the address for service provided in the application for review) was not returned to the Tribunal. The applicant was invited to attend a hearing to take place on 22 October 2003. He was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. There was no response to that letter. The applicant had not provided a contact telephone number or details of anyone assisting him with his application. The applicant did not appear before the Tribunal at the appointed time and place on 22 October 2003. The Tribunal then proceeded to make a decision under section 426A of the Migration Act 1958, without taking any further steps to obtain the views of the applicant.

6. After he commenced these proceedings the applicant attended the initial directions hearing. On that day the matter was listed for hearing on 6 July 2005. The respondent then filed the notice of motion. The notice of motion was initially listed on 8 June 2004. It was then relisted for hearing on 23 June 2004. Notice of the relisting was sent by the Court to the respondent and to the applicant. The applicant did not attend on 23 June 2004. On that day the respondent tendered an affidavit in relation to service of the applicant. It was apparent that there was a difficulty with the respondent's letter notifying the applicant of the hearing of the notice of motion on 23 June 2004. It was sent to the wrong postcode. Out of an abundance of caution, to ensure that the applicant had the opportunity to participate, the matter was adjourned until 20 July 2004. The respondent was required to notify the applicant at all of the addresses known to the Court from the information on the Court file and also all of the material in the bundle of relevant documents.

7. Subsequently an affidavit was sworn by Dean Bell the solicitor with carriage of the matter for the respondent on 20 July 2004, annexing copies of letters sent to the applicant at each of the three addresses known to the court. The court also notified the applicant of the listing of the notice of motion on 20 July 2004 by letters sent to each of those addresses.

8. There has been no response to any of these letters. The applicant failed to appear today. There is affidavit evidence from the solicitor for the respondent that as far as they are aware they have not received an amended application in response to the letters sent to the applicant on 28 June 2004. Nor have they had any other communication from the applicant since the directions hearing conducted on 13 February 2004.

9. The applicant was not present when the matter was first called today, nor when the matter was called on again 20 minutes later. I am satisfied in all of those circumstances it is appropriate to proceed in his absence.

10. Where a party is absent the Court has power under Rule 13.03A of the Federal Magistrates Court Rules to do any of a number of things including proceeding with the hearing either generally or in relation to any claim for relief or dismissing the application. I consider that under Rule 13.03A I may proceed to determine the application for summary dismissal under Rule 13.10 in the absence of the applicant. It is appropriate to do so in circumstances where the applicant has been put on notice not only by the service of the notice of motion but also by the letters advising of the proposed hearing, by service of the submissions of the respondent and by the other notifications to which I have referred.

11. The respondent sought, as a preliminary point, that the matter be dismissed under Rule 13.03 of the Federal Magistrates Court Rules on the basis that the applicant had failed to comply with an order of the Court, that being the order to file an amended application. However, when one considers the precise wording of the order that was made in the directions hearing in relation to the filing of an amended application, it is apparent that it is expressed in terms that the applicant was to file and serve "any" amended application rather than "an" amended application. In these circumstances it may be seen as permissive rather than mandatory. I do not consider that it is appropriate to dismiss the application on the basis of failure to comply with an order so worded.

12. Nonetheless, it is appropriate to consider the notice of motion and whether or not the matter should be summarily dismissed under Rule 13.10 as the applicant is on notice of that application.

13. The argument is put on the alternative basis that there is either no reasonable cause of action disclosed in relation to the proceedings or that the proceeding or claim for relief is an abuse of process. In this respect, I note that while the notice of motion relies on both of these grounds, the initial notification to the applicant was expressed in terms of seeking dismissal on the basis that there was no reasonable cause of action. In those circumstances it is preferable to consider that ground first as it is sufficient if one of these grounds is established.

14. The application filed by the applicant in this Court on 24 December 2003 claimed that the applicant met the refugee criteria and that the Tribunal decision should be set aside. The application merely set out the applicant's claims to be a refugee. It restated his claim to be a Falun Gong practitioner, and to have a well-founded fear of persecution, and his claims as to treatment that allegedly occurred before he left China and led to his leaving the country. These grounds make no reference to the Tribunal reasons for decision or procedure. They do not reveal any reasonable cause of action. However, bearing in mind that the applicant is self-represented, I consider it is appropriate also to have regard to all of the material before me and the Tribunal reasons for decision in determining whether the application should be dismissed. The general principal is that the exercise by a court of a power to dismiss an application on the basis that there is no reasonable cause of action disclosed is appropriate only where it is apparent that a claim is so clearly untenable that it cannot possibly succeed (General Steel Industries v The Commissioner for Railways (1964) 112 CLR 236). I have considered on all of the material before me not whether the material before the Court is such that the action should not be permitted to go to hearing in the ordinary way because it is apparent that it must fail and that it is a hopeless case with no chance of success.

15. Turning then to the Tribunal reasons for decision, as indicated above the applicant was notified properly of his opportunity to attend a hearing. The Tribunal properly proceeded under section 426A of the Migration Act to make a decision on the review without taking any further action to enable the applicant to appear before it.

16. On the material before me it appears that the Tribunal complied with the obligations under the Migration Act, in particular section 425, to invite the applicant to a hearing. There is nothing in the material before me to suggest that there was any arguable lack of procedural fairness in the way in which the Tribunal proceeded.

17. The Tribunal considered each of the claims made by the applicant in the written material accompanying the initial application and also the application to the Tribunal. It addressed those claims and made findings of fact.

18. The applicant had claimed to be a Falun Gong practitioner in China and a leader of the Falun Gong organisation in his city. He claimed that he had been detained and tortured by police, that he kept practising Falun Gong, he had been warned by the police on numerous occasions and fired from his job and he felt there was a crackdown on crimes and heard that the police were planning to gaol him. He claimed he borrowed money to bribe a government official to issue him with a passport and came to Australia.

19. The Tribunal detailed these claims but was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Refugees Convention because it found his claims to be vague as well as inconsistent. It gave reasons for these findings referring, for example, to the fact that despite the delegate's reference referred to the absence of useful detail about the applicant's Falun Gong activities or about his claimed detention and claimed ongoing adverse interest by the authorities, no such detail was provided to the Tribunal.

20. Moreover, the applicant had claimed that he was about to be arrested yet did not respond to questions in the protection visa application about investigations or charges. Further he was able to get a passport in his own name and leave the country openly and legally and delayed leaving for about seven weeks after he obtained the passport. The Tribunal recognised that he had claimed that he paid a bribe to get a passport but found that he had obtained a passport and a visa without any difficulty. The Tribunal also had regard to the absence of clarity in his claims of leadership and involvement in Falun Gong protest activities and the absence of useful detail about such claims.

21. The applicant had not claimed in his initial claims that, as he claimed in his application to the Tribunal, during detention he had acid poured in his nose and had to swallow it and his face was deformed. The Tribunal found this was not apparent in any of the photographs of the applicant available to it (such as the photograph in the application and the photograph in the passport). The applicant did not appear before the Tribunal. The Tribunal concluded that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention.

22. The application itself does not disclose any cause of action, let alone a reasonable course of action. It merely repeats the applicant's claims to be a refugee. Moreover, there is nothing in the material before the Court or in the Tribunal reasons for decision to suggest that there is any basis for a claim of jurisdictional error. There is nothing to suggest that the Tribunal failed to meet procedural fairness and Migration Act obligations or that it did anything other than to make findings which were open to it on the material before it.

23. In all the circumstances, I am satisfied that it has been established that no reasonable cause of action is disclosed in relation to the proceeding or claim for relief and that this is a case in which it is appropriate that the proceedings should be dismissed.

24. The respondent also argued that there is an abuse of process arising, in effect, out of the applicant's failure to participate in the Tribunal hearing, failure to file an amended application, failure to appear at either the first scheduled hearing (for which there may be some explanation because the letter was sent to the wrong postcode) or at the hearing today. It is suggested that in all of those circumstances it would be proper for the court to infer that the applicant had initiated these proceedings as a method of trying to delay his stay in Australia.

25. The power to dismiss a proceeding for abuse of process is an exceptional power which ought to be sparingly exercised and only in exceptional circumstance (See Culture International Pty Limited and Skols (1991) 32 FCR 275 at 279). The onus of satisfying the court that there is an abuse of process lies on the party alleging it, in this case the respondent.

26. The Court does have power to prevent misuse of its procedure in a way which, even if not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to the litigation before it or would otherwise bring the administration of justice into disrepute among right-thinking people as was said in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536. Moreover, regardless of the propriety of the institution of proceedings they may in some circumstances constitute an abuse of process if they can clearly be seen foredoomed to fail or where the Court is an inappropriate forum or it is unjustifiably vexatious or repressive to seek to relitigate a case.

27. In this case the argument is that the proceedings are foredoomed to fail and that I should infer that the applicant, by not participating in the proceedings, has indicated that he is seeking to extend his stay in Australia. I have some concern about dismissing proceedings on the basis that there is an abuse of process in circumstances where the main complaint is a failure to participate in proceedings. There is a clear ground for dismissal on the alternative basis of there being no reasonable cause of action. While there may be circumstances in which it is appropriate to proceed in such a way, I do not consider that the particular circumstances of this case are such that it is appropriate to make a finding that there is an abuse of process. It is not necessary to do so. I am satisfied that there is no reasonable cause of action disclosed or apparent on the material before the Court.

28. In those circumstances, I consider that the proceedings should be dismissed pursuant to Rule 13.10A of the Federal Magistrates Court Rules. The applicant having been unsuccessful should meet the costs of the respondent. The amount of $1,500 being sought is appropriate.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 19 October 2004
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