SZBUD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 527

FEDERAL COURT OF AUSTRALIA

SZBUD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 527

MIGRATION – application for leave to appeal– application disclosed no ground for judicial review – application dismissed.

SZBUD & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 153 OF 2005

HILL J
19 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 153 OF 2005

BETWEEN:	SZBUD & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL
DATE OF ORDER:	19 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicants pay the respondent’s costs, assessed by agreement in the sum of $500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 153 OF 2005

BETWEEN:	SZBUD & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL
DATE:	19 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J

1. Before the Court is an application for leave to appeal against a decision of a federal magistrate dismissing an application to the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The application was dismissed as disclosing no reasonable cause of action.

2. The applicants are husband and wife.  They are citizens of India who arrived in Australia on 13 September 2002.  They applied for a protection visa shortly after their arrival in Australia.  Their application was rejected by a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”).  The applicants then sought review of the delegate's decision by the Tribunal.

3. On 11 August 2003, the Tribunal wrote to the applicants advising them that it was unable to make a favourable decision on the documentary material provided to it.  The Tribunal invited the applicants to give oral evidence and present arguments at a hearing in September 2003.  The applicants, however, advised the Tribunal in writing that they did not wish to give oral evidence.  In the result, the Tribunal proceeded to consider the material before it without the assistance of additional evidence from the applicants.

4. As the Tribunal notes, only the husband made specific claims to be a refugee within the meaning of Article 1A(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (together called "the Convention").  The wife’s application thus depended upon the outcome of the husband’s application.

5. The applicant husband's claim was that he was a Hindu from the State of Gujarat.  He said that he had been a strong supporter of the Congress-I political party.  He said that after Muslims had set fire to a train in Gujarat, he had protested strongly against this act and had thus become the target of extremists from the Muslim League.  He said he had been badly beaten by Muslims and threatened with death if he continued his protests.  He said that he had complained to the police but no action had been taken.

6. He said further that while on a motor scooter, he had nearly been deliberately run down and killed by a car driven by a Muslim.  In the result, he was hospitalised for injury.  He claimed to have a well founded fear of persecution on religious grounds.

7. The Tribunal found that it was possible that the applicant husband had been injured as a result of the wide spread civil disturbance which followed the train incident, although it also found the claim that the motor vehicle accident was deliberate to be a little "far fetched".

8. The Tribunal rejected the claim that the applicant husband was not afforded State protection.  Rather, it found that as a Hindu, in a predominantly Hindu country, he would have enjoyed the full protection of the State.  The Tribunal noted also that the applicant had stayed in the one address from 1986 until departing from India, and in the same place of employment, noting that these matters were not consistent with the applicant husband's claim that he was being driven away from the State in which he lived.

9. The Tribunal noted also that since the applicants had left India, there had been a State election in Gujarat, which returned the government which had been in power at the time of the rail incident and noted that Hindu interests were likely to continue to be protected during the course of this government.

10. The Tribunal was not satisfied that the husband and through the husband, the wife, were refugees within the meaning of the Convention.

11. The applicants then applied to the Federal Magistrates Court on 31 October 2003 for a review of the Tribunal's decision.  The applicants were invited to participate in the New South Wales RRT Legal Advice Scheme but did not do so.  The husband said that he did not speak sufficient English to understand the invitation.

12. On 17 March 2004, a directions hearing was held in the Federal Magistrates Court.  On that day, the applicants were ordered to serve any amended application and evidence upon which they proposed to rely by 28 May 2004.  The orders made that day, by consent, nominated a hearing date of 14 September 2005.  No attempt was made by the applicants to file an amended application and an application was made by the Minister to dismiss the application to the Federal Magistrates Court on the basis that there was no cause of action disclosed in the application, which was said to be frivolous or vexatious and an abuse of process of the Court.

13. The applicant had arranged for the preparation of written submissions, which had been prepared with the assistance of a friend.  These were handed to the learned magistrate.  At the hearing, the applicant husband told the Court that if he were given "a few more weeks" he could produce material in support of his application.   The magistrate noted that there had already been sufficient opportunity to substantiate the application. 

14. The learned magistrate then proceeded to set out each of the grounds stated in the application for judicial review.  His Honour noted that, in effect, the grounds of review were expressed in the most general of terms without any particularisation that might disclose what the basis of review was.  For example, the first ground was stated as follows:

    "That the decision involved a jurisdictional error of law being an error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Refugee Review Tribunal.”

15. No doubt, if there was jurisdictional error, that would be a ground of judicial review, which might have resulted in the Tribunal's decision being set aside.  However, no indication was given as to what the error of law involving incorrect interpretation was.  The magistrate noted also that there was nothing in the Tribunal's reasons that indicated any such error of law.

16. A number of the grounds effectively involved an invitation to the Court to undertake a review of the merits of the case.  Clearly, the Court had no jurisdiction to do so.  A claim that the applicants had been denied procedural fairness in connection with the making of the decision was likewise not particularised.  It is difficult to see, as the magistrate pointed out, how there could have been a denial of procedural fairness when the applicants had been given the opportunity to attend before the Tribunal but had elected not to do so.

17. The learned magistrate noted that he had considered the material in the court book.  His Honour also noted that effectively, the Tribunal's decision had been reached because the applicant had not put before the Tribunal sufficient evidence to substantiate his claims.  I must say that I too have read the material that was before the magistrate and can see nothing in the Tribunal's decision that would provide grounds for judicial review.

18. Before me, the applicants, through the husband, produced written submissions.  The document was apparently prepared by a friend of the applicants.  Some parts of it make no sense.  Other parts of it alleged bias on the part of the Tribunal, breach of the rules of natural justice and that the facts of the present case were similar to the facts involved in the decision of the High Court of Australia in Muin v Refugee Review Tribunal [2002] HCA 30. There is nothing at all in the present facts that is in any way like the facts in Muin.

19. The real substance of the applicants’ submissions was that the initial hearing date of 14 September 2005 should be restored.  It was said that this would give the applicants ample time to collect evidence.  When questioned as to what the evidence was, the applicant husband said that it included newspaper clippings of the railway incident and the document indicating his resignation from the bank where he had been employed.

20. The real point is that none of that material would be relevant, either to the present application, or to the material before the magistrate.  Application for judicial review does not permit the magistrate to reconsider the facts of the case and decide whether, on those facts, the applicant is entitled to be regarded as a refugee. 

21. The applicant husband also submitted that I should adjourn the present proceedings for a period of four weeks to allow him to obtain money from overseas to brief a barrister.

22. The fact is that the applicants made no attempts to have legal representation before the magistrate, notwithstanding that some five months went by between the time the applicants filed their application in the Federal Magistrates Court to the time that Court dismissed the application.  It does not seem that the applicants have made any real attempt, for that matter, to obtain money in the period from 4 February 2005 when the present appeal was filed until today, although the applicant husband claimed to have made two phone calls to a friend and said that the friend had asked for more time.

23. In my view, there is no point in granting to the applicants an adjournment of the present proceedings.  I am not satisfied that such an adjournment would be of any assistance to them.  Clearly, there was nothing on the face of the application before the learned magistrate that showed any cause of action for judicial review of the Tribunal's decision.

24. There is no error of law on the part of the magistrate and no error of principle can be discerned from the magistrate's reasons.  It must be said, it is not surprising that the applicants were unable to particularise any ground of judicial review.  It would usually be very difficult for a person seeking to allege jurisdictional error, or for that matter, bad faith, in proceedings before a Tribunal where the applicants elect not to attend.  This is particularly so where the Tribunal's decision is ultimately a decision of fact, and the Tribunal has not been assisted by the applicants giving oral testimony on factual matters.

25. I would, accordingly, dismiss the application for leave to appeal and order the applicants to pay the Minister's costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             29 April 2005

The applicants were self represented
Solicitor for the Respondent:	Ms O Mak Clayton Utz
Date of Hearing:	19 April 2005
Date of Judgment:	19 April 2005