SZAGL v Minister for Immigration (No 2)
[2006] FMCA 1197
•16 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAGL v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1197 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming caste related persecution in India – RRT not satisfied with the claims – applicant declining hearing invitation – applicant failing to appear for the hearing of this and earlier proceedings to review the same RRT decision – abuse of the Court’s process – observations on the need for such abuses to be dealt with promptly. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.425, 426A Migration Litigation Reform Act 2005 (Cth) |
| SZAGL v Minister for Immigration [2004] FMCA 966 SZAGL v Minister for Immigration [2005] FCA 785 |
| Applicant: | SZAGL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1673 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 16 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2006 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Mr B Cramer Blake Dawson Waldron |
ORDERS
The application is dismissed.
No further application by this applicant to review the decision of the Refugee Review Tribunal made on 22 January 2003 and handed down on 18 February 2003 is to be accepted for filing by this Court except by leave of the Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
The Court directs that the Minister is to enter these orders and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1673 of 2005
| SZAGL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 18 February, 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant, his protection visa claims, and the RRT’s decision on them are set out in written submissions prepared on behalf of the Minister. I adopt as background for the purposes of this judgment paragraphs 1 to 6 of those written submissions:
The application before the Court is for a review of a decision of the RRT made on 22 January 2003 and handed down on 18 February 2003,[1] affirming a decision of a delegate of the respondent made on 28 May 2002[2] to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant, a citizen of India, arrived in Australia on 10 February 2002 and lodged an application for a protection (class XA) visa on 8 March 2002.
The applicant claimed to fear persecution in India at the hands of the BJP, RS Sans Shiv Sena extremists because of he was from a "lower caste" or "backward caste" Hindu family. He claimed that as a university student he had been elected as the secretary of the college's student union committee and that upper caste student's found this intolerable. He claimed to have been threatened, beaten, hospitalised and kidnapped as a result. He claimed that he had gone into hiding and had attempted to relocate but had been unsuccessful in avoiding his persecutors and the police would not take any "constructive action".[3]
The application to the RRT was dismissed because, the applicant not having accepted the hearing invitation, the RRT was simply not satisfied of his claims.
RRT’s decision
On 11 December 2002, the RRT wrote to the applicant pursuant to s.425 of the Act advising him it was unable to make a favourable decision solely on the information before it. The RRT invited the applicant to give oral evidence at a hearing on 28 January 2003. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the RRT may make a decision on his case without further notice.[4] On 21 January 2003, the applicant notified the RRT that he did not want to come to a hearing and that he consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.[5] Accordingly, the RRT proceeded to make a decision based upon the evidence before it pursuant to s.426A of the Act.[6]
Given the paucity of detail and information before the RRT, it was unable to be satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.[7]
[1] court book, pages 69-79.
[2] court book, pages 44-50.
[3] court book, pages 1-3.
[4] court book, page 58.
[5] court book, page 62.
[6] court book, page 73.
[7] court book, page 78.
The present proceeding began with a judicial review application filed on 28 June 2005. That application asserts jurisdictional error on a number of bases which are essentially unintelligible in the absence of particulars. In a significant detail the grounds of the application refer to a failure to take into account oral evidence which makes no sense at all as the applicant declined to attend the hearing before the RRT to which he was invited. The application is in my view hopeless and would have been seen to have been so at the outset if I had considered it at an earlier stage. The applicant has failed to appear for today’s hearing, which is unsurprising.
This matter has particularly unfortunate procedural antecedents. The applicant applied for judicial review of the same decision on 14 March 2003. His application at that time was at least as hopeless as the present one. The applicant failed to appear on the scheduled day for the hearing of that application and the application was dismissed on account of that non appearance. On 29 September 2004, many months later, the applicant applied for reinstatement of that application. I heard that application on 13 December 2004. I dismissed it and gave reasons[8]. Essentially, my reasons were that the applicant had failed to advance a sufficient explanation for his non-attendance at the hearing before me and in any event his application manifestly failed to raise a serious issue to be tried. The applicant appealed from that decision to the Federal Court. He failed to attend the hearing of the appeal and his appeal was dismissed by Edmonds J on 7 June 2005 with reasons[9].
[8] SZAGL v Minister for Immigration [2004] FMCA 966
[9] SZAGL v Minister for Immigration [2005] FCA 785
The present application was filed after that decision in the Federal Court and I was when I looked at the court file in this matter for the first time last night I was very surprised to find that no attempt had been made to deal with the present application summarily. The Court has made substantial efforts this calendar year to deal with delays in the hearing of migration matters in Sydney. In my docket matters can now be listed within six months of filing for a final hearing and within three months for an interlocutory hearing. The number of matters on hand in the registry in migration has been reduced by half. It is disheartening to see matters appearing in the court lists that should not be there in excess of a year after the matter was filed. In order to achieve its objective of providing timely, inexpensive and simple justice in this jurisdiction the Court needs the co-operation of the Minister and her lawyers. That means that hopeless cases should be brought to the attention of the Court in order that they may be dealt with expeditiously.
The conduct of this applicant in filing applications and then failing to attend at the hearing of them points to a cynical abuse of the Court’s process. I find that this Court’s process has been abused. In addition, both the application filed in 2003 and the application filed last year had no prospects of success. They were both irredeemably hopeless. They should have been dismissed summarily.
The applicant should not be permitted to file a further application to review the same decision of the RRT without leave. In any event, a further application to review the decision of the RRT would now be out of time having regard to the amendments of the Migration Act 1958 (Cth) brought about by the Migration Litigation Reform Act 2005 (Cth).
I will order that the application is dismissed and no further application by this applicant to review the decision of the Refugee Review Tribunal made on 22 January 2003 and handed down on 18 February 2003 is to be accepted for filing in this Court except by leave of the Court.
The application having been dismissed, costs should follow the event. There might have been an issue of indemnity costs but, as I have already noted, this application should have been disposed of much earlier and the Minister’s solicitors could have been much more energetic in achieving that outcome. The Minister seeks a costs order fixed in the sum of $2,500. That is a reasonable estimate of costs on a party/party basis even if the matter had been dismissed at an interlocutory stage. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.
I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of these orders to be served by ordinary pre-paid post on the applicant at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 August 2006
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