SZBGT v Minister for Immigration

[2005] FMCA 371

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGT v MINISTER FOR IMMIGRATION [2005] FMCA 371

MIGRATION – Application for review of decision of RRT – where applicant seeks an adjournment but does not attend – where consideration is given to merits of claim.

Federal Magistrates Court Rules 2001

SFGB v Minister for Immigration [2003] FCAFC 231
NAHI v Minister for Immigration [2004] FCAFC 10

Applicant: SZBGT

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1669 of 2003

Judgment of: Raphael FM

Hearing date: 16 March 2005

Date of Last Submission: 16 March 2005

Delivered at: Sydney

Delivered on: 16 March 2005

REPRESENTATION

Solicitors for the Applicant: Mr Jack Singh & Associates

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1669 of 2003

SZBGT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. These proceedings are constituted by an application for an order for review of a decision of the Refugee Review Tribunal made on 9 July 2003 and handed down on 1 August 2003.  The original application was filed in this court on 20 August 2003 by city agents for a solicitor known as Mark Clisby.  There were five grounds of application which were generic in form and did not contain any particulars.  On 6 November 2003 the same agent acting for the same principal filed an amended application for review with certain particulars with which I will deal in due course.  Nothing further was heard from the applicant until the respondent's solicitors were advised by letter that he had changed his solicitors to Jack Singh Solicitor and Associates of 4/55 Main Street, Blacktown, New South Wales, 2148.  Mr Singh has not filed a notice of appearance but attended the court today.

2. Mr Singh told me that he had been instructed by the applicant approximately three weeks ago.  The applicant had provided him with no documentation, in particular with no application or green book.  Mr Singh had written to Mr Clisby asking for copies but had not received them. What he had received was a copy of the Minister's submissions.

3. This afternoon Mr Singh handed me a letter confirming that he had been instructed by the applicant who resided far away from Sydney.  At the time of delivering this judgment I am not aware of where the applicant lives but Mr Singh could be asked to provide his address.  Mr Singh asked that the case be adjourned because he had not received any information from Mr Clisby and so he had been unable to read the file and advise the applicant.  Mr Singh told me that the applicant did not speak English although he could communicate with him in Punjabi.  Counsel for the respondent resisted an adjournment.

4. I declined to grant an adjournment on the basis that Mr Singh had enough time to make application to the court earlier for an adjournment or to apply to either the court or the Minister's solicitors for a copy of the green book and the very few papers that constitute this file.  But I also indicated that one of the matters that I took into consideration was the strength or otherwise of the applicant's case.

5. Mr Singh then withdrew. He had not filed an appearance and I believe he was entitled to take that step. This left the applicant unrepresented although Mr Singh remains in court. The applicant has not appeared and I am therefore entitled to and will dismiss the application pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules. In doing so, and with knowledge of the possibility of an application to restore the matter, I would make these comments concerning the applicant's prospects of success.

6. The applicant's claim to have a well-founded fear of persecution for the Convention reasons of political opinion, religion or membership of a particular social group was evidenced by his history of involvement in the AISSF since about 1984.  This association had led to several alleged incidents in which he had been arrested, kept in custody, tortured and finally only released on the payment of bribes.  The applicant claimed that he had attempted to relocate to another part of India but this was not successful because he had been arrested as a result of him being unable to pay a taxi fare and required to return to the Punjab.  The applicant also told the Tribunal that during his stay in Bombay he had been living in a hotel with three friends when that hotel was raided by police from both Bombay and the Punjab and his three friends had been killed.  The applicant was apparently not in attendance at the hotel at the time.

7. In the course of its discussions with the applicant the Tribunal took up with him a number of matters upon which it had concern.  These included the fact that the applicant did not have on his passport or on his application for a visa to enter Australia a photograph of himself dressed in the typical Sikh turban and beard but he was clean shaven with short hair.  The Tribunal also discussed with the applicant certain independent country information that it had before it concerning the political situation in the Punjab and in particular the improvement in that situation over the years.  The Tribunal questioned the applicant quite closely about the AISSF and its political aims.

8. The Tribunal accepted that the applicant may have been involved in some political demonstrations in 1984 as an informal supporter of the AISSF and may have been arrested.  The Tribunal accepted that if that had occurred he may have been mistreated but was not prepared to say that the persecutory conduct of which he had complained continued.

9. The Tribunal gave reasons why it did not accept the applicant's claim that he had been arrested in 1988 or that he had been followed from the Punjab to Bombay in 1990 in order to be killed.  The Tribunal came to the view that the account of his arrest in Agra indicated that this was due to his failure to pay a taxi driver rather than a suspicion that he was a Sikh militant.  The Tribunal understood the applicant's rejection of normal Sikh appearance to indicate that he was not an active campaigner for Sikh rights and in doing so utilised its own knowledge of appearances on Sikh passports.

10. The Tribunal put this to the applicant and in those circumstances the complaint made in the amended application that it fell into jurisdictional error by using its own experience seems to me to fail at the hurdle of SFGB v Minister for Immigration [2003] FCAFC 231 at [21] and NAHI v Minister for Immigration [2004] FCAFC 10 at [12]. None of the other matters raised by the applicant in the amended order for review, which is still generic in form, seem to me to be sustainable. In the absence of hearing anything further from the applicant I would not be able to be satisfied that the Tribunal fell into jurisdictional error in the manner in which it came to its decision in this particular case.

11. I make these points to assist the applicant in weighing up the risk of applying to this court to restore this matter notwithstanding the order that I have made dismissing it.  It may well be that if such a step is taken and is unsuccessful the applicant could face an order for indemnity costs if such was requested by the Minister.

12. Having dismissed this application, I would also order that the applicant pay the respondent's case which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

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

Associate: 

Date: