SZBRB v Minister for Immigration
[2004] FMCA 285
•28 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBRB v MINISTER FOR IMMIGRATION | [2004] FMCA 285 |
| MIGRATION – Application for review of decision of Registrar of this court – where applicant had not complied with directions to appear – where case dismissed by Registrar – where applicant seeks to reinstate proceedings by review – where facts indicate no possible utility. |
Federal Magistrates Court Rules Rules 2001,10.01(2)(b)
MMM v Minister for Immigration [1998] 90 FCR 324
| Applicant: | SZBRB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 2183 of 2003 |
| Delivered on: | 28 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 28 April 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in addition to those ordered by Registrar Tesoriero in the sum of $500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2183 of 2004
| SZBRB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me an application to set aside a decision of Registrar Tesoriero made on 26 February 2004 dismissing the application for review of a decision of the Refugee Review Tribunal pursuant to Rule 10.01(2)(b) of the Federal Magistrates Court Rules.
The applicant filed an application for an Order of Review in the Federal Magistrates Court on 17 October 2003. The matter was listed for directions on 19 February 2004 at 2.15pm. There was no appearance by the applicant or her solicitors at the directions hearing on 19 February 2004 so the court made the following orders:
a)Matter stood over to 2.15pm on 26 February 2004;
b)The respondent to inform the applicant of the time and date of the adjournment and that if there is no appearance by the applicant on the next occasion the application will be dismissed.
The respondent complied with those orders by way of a letter dated the 19th February 2004 to the applicant's solicitor. There was no appearance by the applicant or her solicitor at the directions hearing on 26 February 2004. The court made orders dismissing the application and requiring the applicant to pay the respondent's fixed costs in the sum of $700.00. The respondent was ordered to notify the applicant at her last known address of these orders. This was done by way of a letter dated 26 February 2004.
There was silence from the applicant until 20 April 2004, some 54 days later, when she filed an application and supporting affidavit seeking reinstatement of the application. The affidavit blames her former solicitor for not telling her that she needed to attend court on the 19 and 26 February. At first it appeared that her solicitor had not told her about the dates at all but she admitted to me that he had told her about the dates but not that she should attend. She said that if she was aware she should have attended she would have done so.
In many circumstances I would have been inclined to reinstate the matter and perhaps obtain some further information about the conduct of the solicitor involved. But in this case I have declined to do that. The reason for my decision is that it seems to me that in all the circumstances the applicant's claim for review is hopeless. I have had the opportunity of reading the Tribunal's reasons for decision. It would appear from them that the applicant is no stranger to Australia. She came here sometime ago and studied. She then seems to have returned to India and then returned to Australia.
Her application for a protection visa makes a number of allegations about the way she was treated in her home village. It would appear that the moment she attended before the Tribunal she distanced herself from those statements and told the Tribunal that the real problem that she had was that so described by the Tribunal as follows:
“ The applicant frankly conceded that the statement provided in support of the application for a protection visa was not an accurate reflection of her circumstances in India or of why she did not want to return there. She stated that it was true that her parents had wanted her to marry, but this is where the similarity between her own experiences and those set out in the statement ended. She added that her parents had a man in mind who they wanted her to marry, but he was uneducated and she did not wish to marry him. She did not claim, nor did she suggest, that she came to any actual harm at the hands of her parents or anyone else because of her reluctance to marry.
The applicant explained that she is fearful of returning to India because of the humiliation she feels she will endure and the shame she believes the circumstances of her return will bring upon her parents. Her parents believe her to be successfully pursuing a career in Australia. She comes from a small village and is worried that everyone will know about her problems and that her success overseas is not real. Her father has a heart condition and she is worried what impact the loss of face may have on his health.
Without wishing to diminish these very real concerns which the applicant holds about returning to India she did not point to any past instances of serious harm or conduct capable of constituting persecution which she had encountered in India.”
The Tribunal goes on to be very generous with the applicant in connection with her conduct in the filing of a clearly inaccurate application for protection. It states that it found the applicant to be a person who gave her oral evidence in frank and forthright manner. But having regard to what she had said to the Tribunal, it made it clear that it did not believe that she had in the past, or that there was a real chance in the future, of her being persecuted for a Convention reason.
The Tribunal was not satisfied the pressures from her parents to marry a man she did not wish to marry constituted persecution within the meaning of the Convention. Before me today the applicant accepted the truth of the statements made by the Tribunal which I have set out above. I note that in MMM v Minister for Immigration [1998] 90 FCR 324 Madgwick J held that familial rejection was a purely private matter and cannot be regarded as persecution within the Convention. I am satisfied that the applicant, in the light of the admitted facts, would be unable to show any error in law on the part of the Tribunal.
The applicant has asked for some time in which to take advice from another lawyer. She frankly admits she has no funds to pay such a lawyer and my experience in this court would tend to indicate that she would be unlikely to obtain either legal aid or pro bono assistance given the decision made by the Tribunal and the facts there presented.
Under the circumstances I believe that it would not be in the interests of justice to reinstate this application. I will therefore dismiss the application made before me today and order that the applicant pay the respondent's costs, in addition to those already ordered by Registrar Tesoriero, in the sum of $500.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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