FEDERAL CIRCUIT COURT OF AUSTRALIA
SZUTA v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 314	

Catchwords: 
MIGRATION – Refugee Review Tribunal – summary dismissal – application dismissed.	

Legislation:  
Federal Circuit Court of Australia Act 1999
Federal Circuit Court Rules 2001
Migration Act 1958	

Spencer v The Commonwealth of Australia (2010) 141 CLR 118	

Applicant:	SZUTA	

First Respondent:	Minister for Immigration & Citizenship	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 111 of 2015	

Judgment of:	Judge Street	

Hearing date:	12 February 2015	

Date of Last Submission:	12 February 2015	

Delivered at:	Sydney	

Delivered on:	12 February 2015	

REPRESENTATION
Counsel for the Applicant:	N/A	

Counsel for the Respondents:	Ms Hillary	

Solicitors for the Respondents:	Mills Oakley	

ORDERS
(1)	The application be summarily dismissed. 
(2)	The Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney	
SYG 111 of 2015
SZUTA	
Applicant

And

Minister for Immigration & Citizenship	
First Respondent

Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant seeks a constitutional writ on the following ground:
	1. The Tribunal error by concluding that the applicant evidence was vague in his evidence.
	Particulars
	The reasons for protection visa given during the interview is different than the ground of his application. (Para 16 and 17) and ignore that fact that the applicant was explaining associated factors which was connected to his claim. 
2.	This is the return date for hearing of the matter or further directions.  The application expressly records that the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings.  On the face of this application, it is patent that the alleged ground of jurisdictional error is deficient.  
3.	The applicant has failed to appear before the Court this morning, and the matter could be dealt with by way of default of appearance;  however, in light of the fact that the application fails to identify any proper jurisdictional error, I propose to deal with the matter under the Court’s jurisdiction pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 and rule 13.10 of the Federal Circuit Court Rules 2001. I take into account the caution and principles identified in Spencer v the Commonwealth of Australia (2010) 241 CLR  118:
	24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in FanCourt v Mercantile Credits Ltd said[48]:
	"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".
	More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:
	"Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
	There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
	25. S.31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the Court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. 
	…
	59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
	60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
4.	In is a decision dated 18 December 2014, the Tribunal affirmed the decision of the delegate made on 14 August 2013 to refuse to grant the applicant a Protection class (XA) visa.  The Tribunal’s reasons carefully identify the relevant law, and the Tribunal noted that the applicant appeared before it on 18 December 2014 to give evidence and present arguments.  According to the evidence of the applicant before the Tribunal and before the delegate, the applicant claimed protection on the sole ground that he would suffer harm in Pakistan because he was in a relationship with a woman before he left Pakistan to come to Australia in 2008, and that the issue that fell for determination in the review was the applicant’s credibility.
5.	The Tribunal carefully set out its reasons for finding the applicant was not a truthful witness, relatively as follows:-  
	28. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. The applicant told the Tribunal that the events on which his protection claims were based occurred some years ago but the Tribunal does not accept that this explains or excuses the concerns the Tribunal holds about his credibility. Accordingly, the Tribunal disbelieves the applicant's claims about being in a relationship with a girl in Pakistan; the girl being married to somebody else and the girl's family or the girl's husband inflicting harm on the applicant's family and the applicant himself. The Tribunal does not believe the applicant or his family ever received threatening telephone calls; that cars were parked outside the family home; that shots were fired at the family home from a car and that the applicant was ever abducted or assaulted. 
	29. There is no credible evidence before the Tribunal that the applicant or his family in Pakistan ever suffered harm. There is no credible evidence before the Tribunal that anybody in Pakistan wishes to harm this applicant. The applicant is a Sunni Moslem man from Islamabad. He has lived in Australia since 2008. When asked whether he was afraid to return to Pakistan for any reason other than his fear of the girl's husband, the applicant said that he had been in Australia for a number of years. He said he had a life in Australia he could not have in Pakistan. The Tribunal pressed the applicant to say what harm he feared in Pakistan on that basis. The applicant said that he was safe in Australia but if he returned to Pakistan he would not be and that was because of the girl's husband.
	30. The Tribunal does not believe the applicant's claims about the girl's husband. There is no credible evidence before the Tribunal as to why the applicant does not wish to return to Pakistan and why he travelled to Australia from Pakistan when he did beyond the purpose of study. Accordingly, there is not a real chance the applicant will suffer serious harm in Pakistan and he does not hold a well founded fear of persecution based on any convention ground. (emphasis added)
6.	The findings were clearly open and there was an evident and intelligible justification for the findings made.
7.	The Tribunal then turned to consider the complementary protection criterion:
	31. With respect to the complementary protection criterion, the Tribunal repeats its finding that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. There is no credible evidence that the applicant or his family suffered harm in Pakistan. There is no credible evidence that anyone in Pakistan wants to harm this applicant. There is no credible evidence before the Tribunal as to why the applicant travelled from Pakistan to Australia when he did beyond the purpose of study. There is no credible evidence before the Tribunal as to why the applicant does not wish to return to Pakistan. The only ground on which he claimed to fear harm was his fear of the person referred to in this decision as the girl's husband; claims the Tribunal disbelieves.
	32. Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to the receiving country, Pakistan, there is a real risk that he will suffer significant harm.
8.	The Tribunal concluded as follows:
	33. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
	34. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied
	that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
	35. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
9.	It was clearly open to the Tribunal to make the findings it did on credibility, and there is no substance in the alleged ground of error in the application.  There is clearly no arguable jurisdictional error. I am clearly satisfied that the application has no prospects of success.  For these reasons, the application is summarily dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  17 February 2015