SZCEX v Minister for Immigration - [2004] FMCA 958

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCEX & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 958

MIGRATION – Where application for review of RRT decision was dismissed as result of applicants’ repeated non-compliance with orders of the Court – Application to have said order set aside – where applicant claims to have not received notification of the Court’s requirement that he file and serve an amended application, or to the extent that he did, not to have understood it – whether applicants’ draft amended application discloses any prospects of success in the event that the hearing was restored – where Tribunal found that the applicant was not a credible witness – whether the Tribunal considered all of the claims put forward by the applicant – whether the findings and reasons of the Tribunal evidence jurisdictional error or a denial of procedural fairness.

Federal Magistrates Court Rules 2001

Steed v MIEA (1981) 37 ALR 620
Muralidharan v MIEA (1996) 62 FCR 402
MIEA v Guo (1997) 191 CLR 559
MIMA v Yusuf (2001) 206 CLR 323

First Applicant:

SZCEX

Second Applicant:

SZCEY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2772 of 2003

Delivered on:

3 December 2004

Delivered at:

Sydney

Hearing date:

3 December 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicants:

Mr Campbell

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $650 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2772 of 2003

SZCEX & SZCEY

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter the Refugee Review Tribunal determined on 27 October 2003 to affirm a decision of a delegate not to grant the two applicants protection visas. It handed down that decision on 20 November 2003. Thereafter, on 16 December 2003, the applicants filed an application under s.39B Judiciary Act 1903 in this Court seeking to set aside the decision of the Tribunal.
The applicants alleged that the Tribunal failed to consider properly the evidence before it, that it relied on irrelevant information, that its reason to reject the applicants’ claims were based on poor investigation and lack of proper knowledge of information, that it failed to ask the applicants to make comments on adverse material used to reach its decision and that it took into account irrelevant and outdated material. It was also alleged that the Tribunal breached the rules of procedural fairness.
On 23 August 2004 this matter came before me in what is described as a “non-compliance” list. The matter had previously come before a Registrar of the Court on 19 May 2004. The Registrar had made orders requiring the applicants to file and serve an amended application giving complete particulars of each ground of review being relied upon and any evidence upon which they proposed to rely by 2 June 2004. That order had not been complied with.
On 23 August 2004 I made orders requiring the applicants to file an amended application on or before 30 August containing at least one asserted jurisdictional error and giving particulars of each jurisdictional error alleged. I ordered that if no further application was filed before 30 August the applicant could apply for orders in chambers dismissing the application for non-compliance. I made orders for costs.
The applicant did not comply with those orders. The respondent sought the judgment she was thereby entitled to and on 10 September 2004 I dismissed the application pursuant to Part 13 Rule 13.03(2)(b) of the Federal Magistrates Court Rules.
The applicants, as they were entitled to, then filed an application pursuant to Rule 16.05 of the Rules that the order of 10 September be set aside. An affidavit in support dated 28 September 2004 was filed and a draft amended application. The gravamen of the affidavit was that the male applicant had not received the documentation advising him of the various hearings of the case or to the extent that he had received that documentation he did not understand it.
In support of the Minister's submissions that I decline to set aside the judgment the respondent's solicitors filed an affidavit of 29 November by Emma Jayne Knight. That affidavit deposed to the fact that a recorded delivery letter on 24 August 2004 advising the applicant of the orders of 23 August 2004 had been sent to the applicant.
There seems to be little doubt that by today the applicants are fully appraised of the situation. They were ably represented by Mr Campbell who accepted that one of the matters I should take into account in making any decision was the prospects of the applicants’ success in any restored hearing. It is therefore necessary to describe shortly the applicants’ case.
The male applicant and his wife are citizens of India who lived in the Punjab. The male applicant claims to be a member of the Akali Dal Party and was active in the 2002 elections. He claims that during the course of that election there was a clash between Akali Dal and Congress Party supporters at a particular booth and four people were killed. The male applicant claims that he was charged with those deaths. He claimed that he was taken into custody, that charges of murder and perjury were filed against him but that he attended court on 13 July 2002 and was granted bail.
He claims that on 26 August 2002 he was involved in organising an Akali Dal rally in his village which was disrupted by Congress Party members and police who hit people with batons. He told the Tribunal that further false allegations were then made against him and he incurred penalties for non-compliance with court orders. The applicant then travelled to Australia with his wife.
The Tribunal considered the statements made by the applicant and put to him its very serious concerns about their veracity. The description of the communication between the Tribunal and the applicant is set out in some detail at [CB 58] - [CB 62]. At [CB 60] the Tribunal says in its Findings and Reasons:
“As the Tribunal indicated to the applicant, it had grave concerns about the veracity of the claims. The applicants’ oral evidence was much less certain than his written statement which specified dates for several incidents. The oral testimony entirely overlooked the written account of an Akali Dal rally on 26 August 2002 when the applicant wrote that the police arrested him, beat him and thereafter began to lay false charges against him. The testimony is inconsistent and implausible; it is unsupported (indeed, it is contradicted) by independent evidence. As the claims in this case bear such a striking resemblance to those in RRT case N/03-46718 heard by the Tribunal identically constituted the evidence and reasoning used in that case will also be used here.”
The reference to the other Tribunal case was a reference to an application which had been made utilising exactly the same statement of facts as have been used by this applicant. That matter, along with all the other doubts that the Tribunal had, were put to the applicant so that it cannot be argued that he was denied procedural fairness.
The grounds that the applicant now sets out in his proposed amended application are as follows:
1. The applicant made the following claims before the Tribunal:
(a) On 10 July 2002 a charge of “false witness” was filed against him.
(b) On 13 July 2002 the applicant's house was attacked and burnt down.
(c) On 26 August 2002 the applicant was arrested, taken into the police station and badly beaten.
2. The Tribunal did not findings in relation to these claims, specifically whether the events claimed occurred, whether the events might occur again and whether the applicant had a well-founded fear of persecution on this basis. In these circumstances the Tribunal's decision involved jurisdictional error.
It is correct to say that the Tribunal has not specifically referred to the alleged accusations against the applicant of "false witness". What the Tribunal has done is to indicate that it does not believe almost anything that the applicant said in relation to his association with the Akali Dal Party and the occurrences in March 2002. It rejects absolutely the more serious allegation made against the applicant of being responsible for four murders. I am entitled to infer from all of this that the Tribunal considered and rejected any alleged claim of bearing false witness.
The second ground alleged by the applicant was the failure of the Tribunal to deal with the claim that his house had been attacked and burnt down. Once again the Tribunal, utilising country information, concluded that it did not accept the applicants’ story concerning the very serious allegations that he claimed arose out of the violent incidents. It would seem to follow that if the applicant had not been charged with murder as he claimed there was no reason for his house to have been attacked or burnt down. Finally, there is a similar complaint about the allegation that he had been arrested and badly beaten in the police station. The same principles apply.
It need not be said that the Federal Court had made it quite clear there is no requirement upon the Tribunal to go through each and every allegation of the applicant and to comment upon it. As has been said in Steed v MIEA (1981) 37 ALR 620 at 621 per Fox J:
“It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. It is not in anyone’s interest that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with.”
Further authority for the fact that the Tribunal is not obliged to specifically deal with every item of evidence in its reasons can be found in Muralidharan v MIEA (1996) 62 FCR 402 at 414 per Sackville J; MIEA v Guo (1997) 191 CLR 559 at 593 per Kirby J; MIMA v Yusuf (2001) 206 CLR 323 at [67] - [68].
I am quite satisfied that the applicants’ 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 application to do so is dismissed. The applicants must pay the respondent's costs which I assess in the sum of $650 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 13 December 2004