SZCEX v Minister for Immigration - [2006] FMCA 605

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCEX & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 605

MIGRATION – RRT decision – Indian Sikh claiming political persecution – disbelieved by Tribunal – previous judicial review application dismissed at interlocutory stage – no arguable case for relief claimed in new application.

Federal Magistrates Court Rules 2001, rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.476(1), 477, 477(2)
Migration Litigation Reform Act 2005 (Cth), Sch.1 cll.41, 42

SZCEX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 280
SZCEX & Anor v Minister for Immigration [2004] FMCA 958

First Applicant:

SZCEX

Second Applicant:

SZCEY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG219 of 2006

Judgment of:

Smith FM

Hearing date:

18 April 2006

Delivered at:

Sydney

Delivered on:

18 April 2006

REPRESENTATION

Counsel for the Applicants:

First applicant in person by telephone link.

Counsel for the First Respondent:

Mr A Carter

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicants must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG219 of 2006

SZCEX

First Applicant

SZCEY

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks an order that the respondents show cause why a remedy should not be granted by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 20 November 2003. The Tribunal affirmed a decision of a delegate made on 25 February 2003 which refused to grant protection visas to the applicants.
As I shall indicate below, the applicants previously sought orders by way of judicial review from this Court in relation to the same decision of the Tribunal, and that application was dismissed at an interlocutory stage by Raphael FM.
Under the Court’s current jurisdiction under the Migration Act, a time limit would have prevented the applicants from bringing a second judicial review application in this Court if they had filed it after 23 February 2006, since they would not have been able to contest that they had actual notice of the Tribunal’s decision prior to 1 December 2005. However, the present application was filed on 20 January 2006, which was within the period of grace for applications in relation to earlier Tribunal decisions allowed under the transitional provisions of the Migration Litigation Reform Act 2005 (Cth) (see Sch.1 cll.41 and 42). It was therefore not outside the time limit under s.477, assuming that an extension of time were given under s.477(2).
That is not to say that the applicants do not face difficulties in their substantive application under the Court’s discretion in relation to extension of time and also under its discretion to refuse relief even where jurisdictional error is established, arising from the circumstances of the previous litigation and their delay in coming to Court on this occasion. However, for reasons which shall appear, I do not need today to explore whether the applicants can justify the delays, nor whether the application would be dismissed based on their conduct of the previous litigation. I shall today assume that they would be given relief if they could establish jurisdictional error affecting the Tribunal’s decision.
The present application was given a first court date before me on 15 February 2006. On that occasion the first‑named applicant appeared in person, representing himself and his wife. He was assisted by an interpreter in his language. I set the matter down today for a hearing under r.44.12 of the Federal Magistrates Court Rules 2001, as to whether the application raised an arguable case for the relief claimed. I am confident that the applicants were properly notified on that occasion that their application might be dismissed if I were not satisfied that it raised an arguable case for the relief claimed.
Neither of the applicants has appeared today, but the Court received a facsimile message this morning asking it to contact him on his telephone because he could not afford to travel from Griffith. I agreed to follow that procedure, and the first applicant has spoken to me by telephone connection on behalf of himself and his wife, ably assisted by a competent Punjabi interpreter. I gave him a full opportunity to explain the merits of his application. At the end of the telephone hearing, I indicated that I had decided that his case should be dismissed. A copy of the orders made today has been posted to the applicants, as will be these reasons.
My reasons for thinking that the present application has no prospect of success, and does not raise an arguable case for relief by way of judicial review are as follows.
The first applicant is a national of India who arrived in Australia with his wife in November 2002. On 19 December 2002 an application for a protection visa was lodged with the assistance of a migration agent, Davidson James. The application was accompanied by a brief statement, in which a confused history of involvement in Sikh politics was given. All the substantive claims were those of the first applicant, and I shall refer to him as “the applicant”.
The applicant claimed to have been “the main leader of Akali Dal‑Badal Group in our constituency” in the Punjab. He claimed that he was a target for opposition political parties, and that a number of false cases were filed against him, including “a murder case”. He claimed to have been arrested and gaoled by police, and that his house had been attacked by unknown people in July 2002. After further encounters with police in August 2002, and further false cases being brought, “I understood that this is not ending my crises and decided to flee the country”.
A delegate refused the application on 25 February 2003, and the applicant sought review by the Tribunal on 26 March 2003. He was assisted by a different migration agent. His application repeated claims such as had been previously made, and the applicant elaborated them at a hearing which he attended before the Tribunal on 23 October 2003.
According to the description of the hearing given by the Tribunal in its reasons, the applicant claimed that following an incident at a polling booth in February 2002 he had been accused of four counts of murder, but was released on bail. He could not recount any further actions taken in relation to those charges, but referred to subsequent incidents such as had been referred to in the original statement.
The Tribunal rejected the applicant’s claims to have been charged with four counts of murder for a number of reasons. These included reference to country information which satisfied it that no deaths had occurred in the polling booths in the relevant election, and its opinion that it was implausible that the applicant would have been granted unconditional bail and been able to leave the country if he was facing a quadruple murder charge. The Tribunal also referred to country information which did not indicate that due processes were not being followed in cases where charges were laid in the Punjab. It also referred to information that suggested to the Tribunal that:
the applicant’s district has remained loyal to Akali Dal and it is difficult to believe that ordinary Akali Dal members and supporters there (such as the applicant) are being generally subject to the sort of treatment that he alleged, given that India is a democracy and that changes in government were hence to be expected.
On 16 December 2003, the applicants commenced their first application for judicial review in this Court, using a form of application which consisted of a list of unparticularised contentions. The application was dismissed on 10 September 2004 by Raphael FM in chambers for non‑compliance with orders requiring an amended application.
The proceeding was re‑listed before Raphael FM on 3 December 2004, on the application of the applicants seeking the setting aside of the default order. The applicants were represented by counsel, who presented an argument contending that the Tribunal had not addressed events claimed by the applicant other than the murder charges. Raphael FM refused the application and gave reasons (see SZCEX & Anor v Minister for Immigration [2004] FMCA 958). He considered that it could clearly be inferred from the Tribunal’s reasons that the claims about events following the murder charges had been rejected by the Tribunal. He said:
17.I am quite satisfied that the applicant’s application, if it followed the draft attached to the affidavit, has no reasonable prospect of success. In those circumstances it is not in the interests of justice to allow this matter to be restored to the lists.
The applicants filed in the Federal Court an application for leave to appeal against the orders of Raphael FM. This was listed before Jacobson J on 10 March 2005, where there was no appearance by the applicants. His Honour therefore dismissed the application (see SZCEX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 280).
The applicants have not explained their absence before Jacobson J, nor their delays since March 2005 in seeking further to litigate the validity of the Tribunal’s decision.
Of more significance to my present consideration is the adequacy of the grounds of the present application. These are:
1.That the RRT failed to give the evidentiary value to the document on which the applicant relied upon.
2.That the RRT has committed a judicial error while not complying with the judicial aspects of the case.
3.That the RRT has committed unfairness of the procedural aspects.
4.That the case & the evidence so placed by the applicant was not legally seen instead it was dealt in a arbitrary manner. As such the judicial error was committed by the RRT.
Plainly, these are inadequate in the absence of any particulars of their contentions, and on my reading of the material they are without any substance. I can find no arguable error raised by any of these grounds.
The applicant was given an opportunity in the orders I made at the first court date to file and serve before 11 April 2006 an amended application, including additional grounds of review with complete particulars and any affidavits. He has had the benefit for several years of a Court Book containing the relevant documents from the files of the Department of Immigration and the Tribunal.
However, the only further document which he has filed is a document filed on 10 April 2006 headed “Affidavit”. This attaches an undated letter from a Punjabi advocate, which the applicant appears to wish to put forward in corroboration of his refugee claims. There is nothing before me that shows or claims that this document was in evidence before the Tribunal, or that it failed to consider this or any other evidence before the Tribunal. I do not consider that the document recently filed by the applicant gives any substance to the grounds of his application.
On all the material before me, including the written and oral submissions of the applicant, I am not satisfied that the application has raised an arguable case for the relief claimed. In all the circumstances set out above, I consider it appropriate for me to exercise my power to dismiss the application under r.44.12(1)(a), and I so order.
Subsequent to my making orders and giving judgment for the reasons which I set out above, a further document described as an “Amended Application” reached my chambers in John Maddison Tower. This had apparently been filed in the Registry at Queens Square on 18 April 2006, i.e. on the date of the hearing and long after the time allowed in my directions of 15 February 2006. The applicant made no reference to an intention to rely upon such a document in his facsimile to the Court requesting a telephone hearing, nor in the course of the hearing when I identified the documents which I had read. I have now read that document, and it does not cause me to alter any of the opinions I have given above, nor to recall the parties for further submissions. Rather, it confirms that the letter from the Punjabi advocate was “now very recently received”, and presents in support of the judicial review application only fresh information in support of the applicant’s refugee claims. This cannot provide arguable grounds for the relief sought.

I certify that the preceding twenty‑two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 2 May 2006