SZBVT v Minister for Immigration and Citizenship

[2012] HCASL 101

SZBVT

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 101
S248/2011

1. The applicant is a citizen of India.  He arrived in Australia in November 1997 and he applied for a protection visa on 27 June 2003.  The Minister's delegate refused the application on 29 July 2003.

2. The applicant claims to fear persecution in India on the ground of his religion.  The applicant is a Muslim.  He claims to have been harassed by Hindu fundamentalists. 

3. The applicant unsuccessfully sought a review of the delegate's decision before the Refugee Review Tribunal ("the Tribunal").  The Tribunal's decision affirming that of the delegate was set aside by the Federal Court of Australia on 26 June 2006.  The application for review was remitted to the Tribunal to be determined according to law. 

4. A differently constituted Tribunal affirmed the delegate's decision on 17 October 2006.  The Tribunal was satisfied that the applicant is a Muslim and accepted his account that his father's business had been destroyed by Hindu militants in the riots that followed the demolition of the Babri Masjid Mosque.  However, it did not consider that the generalised violence in this period of civil disruption supported a claim of fear of Convention-related persecution.  The Tribunal was unfavourably impressed by the significant delay between the applicant's arrival in Australia and his application for a protection visa.  It rejected a number of his claims.  It was not satisfied that there is a real chance that the applicant will be persecuted for a Convention-related reason in India in the reasonably foreseeable future. 

5. An application for judicial review was dismissed by the Federal Magistrates Court (Scarlett FM). 

6. The applicant appealed from the orders of the Federal Magistrates Court to the Federal Court by notice signed by his solicitor on 13 April 2007.  The appeal was dismissed by Middleton J on 8 August 2007 when the applicant failed to attend the hearing.  The order of dismissal was entered on 13 August 2007. 

7. On 20 July 2011 the applicant filed an application for special leave to appeal from the order of the Federal Court. He filed an affidavit stating that it was not until 6 July 2010 that he had been advised by the Department of Immigration that his Federal Court application had been finalised "some time ago". He said that on learning of the dismissal he had applied for ministerial intervention under s 417 of the Migration Act 1958 (Cth). That application was made on 23 August 2010. On 4 June 2011 he was advised that the Minister did not propose to intervene in his case. It was following this determination that the applicant brought the present application.

8. The applicant seeks special leave to appeal contending that the Federal Court erred by its failure to give him an opportunity to be heard.  The application is misconceived.  His appeal was dismissed because he failed to attend on the day it was listed before the Court.   It was open to the applicant to move the Federal Court for an order setting aside the dismissal.  Nothing in the material filed in support of the present application would justify the grant of special leave to appeal from an order dismissing an appeal for failure to attend a hearing relating to it.

9. The application is dismissed.

10. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
20 June 2012 V.M. Bell