SZDEK v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 On 22 November 2004 Driver FM, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules, summarily dismissed an application by the present applicant under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision by the Refugee Review Tribunal ('the RRT'). Summary dismissal of a proceeding may be ordered under rule 13.10(a) of the Federal Magistrates Court Rules if no reasonable cause of action is disclosed in relation to the proceeding. 2 On 6 December 2004 the applicant filed a notice of appeal in this Court against that decision. On 16 December 2004 the respondent lodged a notice of objection to the competency of the appeal on the basis that the decision of Driver FM is interlocutory and the applicant had not been granted leave to appeal against that judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 3 At a directions hearing on 11 February 2005 I ordered by consent that the purported notice of appeal filed on 6 December 2004 be treated as an application for leave to appeal. This is the hearing of that application for leave. 4 The applicant is a citizen of India who claims that he has a well-founded fear of persecution by the Indian authorities because of his political activities. On 17 December 2003 the RRT wrote to the applicant requesting that he respond to a number of questions put by the RRT by 10 February 2004. The letter informed the applicant that if he did not provide the additional information sought, the RRT would make a decision on the review of his case without further notice to him. By letter dated 11 February 2004 the RRT advised the applicant that the hearing which had been earlier scheduled for 17 February 2004 had been cancelled by reason of his failure to respond to the letter of 17 December 2003. 5 On 4 March 2004 the RRT handed down a decision which it had made on 11 February 2004 affirming the decision not to grant a protection visa to the applicant. The RRT was not satisfied that the applicant's claims were genuine because they were vague, internally inconsistent and without supporting details or documentary evidence. Moreover, the applicant had failed to comply with the RRT's request for further information. 6 On 20 July 2004 the applicant filed an amended application in the Federal Magistrates Court. The grounds upon which the applicant relied in the amended application are as follows: 'Particulars: The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a particular social group and the involvement with the politics in India. The Tribunal's satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. The tribunal did not observe Migration Act properly to making the decision. I will provide more details to support my judicial review application in my outline of submission.' 7 The Federal Magistrate agreed with the submissions of counsel for the Minister that there was no substance to any of the grounds for review advanced by the applicant in the amended application and that the Minister had met the high standard required for summary dismissal, namely that it is plain and obvious that the grounds of the application are unarguable or that it is a hopeless case with no chance of success. I agree with the views expressed by the Driver FM in that respect. The case particularised in the grounds of the amended application bears little relationship to the facts of the present case, and it was doomed to failure. 8 On 4 April 2005 the applicant lodged an outline of the submissions which he wished to put to this Court. The document has been placed with the papers so that it is on the official record of the Court. I will not attempt to summarise its contents. However, the outline asserts actual bias on the part of the Tribunal member. Bias was not relied upon before Driver FM, and it is impossible to conclude from a study of the RRT's reasons (and nothing else is relied upon) that the Tribunal member was biased. The Tribunal member appears to have dealt with the application in an orthodox and unexceptional manner. 9 The submissions also assert that the RRT did not act in good faith. Lack of good faith was not relied upon before Driver FM, and nothing in the applicant's submissions comes anywhere near to making out a case of lack of good faith. There is no foundation in these allegations of impropriety which the applicant makes in relation to the Tribunal member. The balance of the submissions bears little, if any, relationship to the facts of the present case and does not disclose any reason why leave to appeal should be granted. 10 Two affidavits from India are attached to the applicant's submissions. Neither affidavit was before the RRT or Driver FM. They are incapable of establishing jurisdictional error on the part of either the RRT or Driver FM. The affidavits are directed towards proving as a matter of fact that the applicant will not be able to live a peaceful life in India. But material of this type should have been submitted to the delegate or to the RRT if the applicant wished to rely upon it. It is not material which I can receive because I am not entitled to embark upon a merits review of the RRT's decision. 11 The application for leave to appeal should be refused because an appeal on the grounds foreshadowed would have no realistic prospect of success. I therefore refuse leave to appeal from Driver FM's decision. 12 The Minister's solicitors seek an order that the application be dismissed with costs. The applicant opposes an order being made to that effect because he is impecunious. I am prepared to assume that the applicant is impecunious, even though he has not put any specific evidence before me to that effect. However, impecuniosity is not ordinarily regarded as being a reason for departing from the usual practice of ordering an unsuccessful applicant in the circumstances of the present case to pay the Minister's costs. The application is therefore dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.