SZCQH v Minister for Immigration

[2004] FMCA 1091

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCQH v MINISTER FOR IMMIGRATION [2004] FMCA 1091

MIGRATION – Review of decision of RRT – dismissal pursuant to Rule 13.03(2)(b) Federal Magistrates Court Rules 2001.

Applicant: SZCQH

Respondent: THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 285 of 2004

Delivered on: 3 December 2004

Delivered at: Sydney

Hearing date: 3 December 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Mr. P. Reynolds

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The orders that I make are that the application is dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules.

2. The applicant pay the respondent's costs set in the amount of $3500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 285 of 2004

SZCQH

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 5 February 2004, the applicant filed in this Court an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 January 2004, and handed down 28 January 2004, affirming the decision made on 30 June 2003 by a delegate of the respondent Minister to refuse a protection visa to the applicant. 

2. The issue before me today brought, by way of the respondent listing the matter in the Court’s non-compliance list, is an application by the respondent that the applicant’s application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules because of a failure by the applicant to take a required step in the proceedings.

3. The applicant attended the first Court date in this matter on 3 June 2004.  He appeared in person and was assisted by an interpreter in the Hindi language.  By orders, made by consent on that date, the applicant was required by order 2 “to file and serve an amended application giving full particulars of each ground of review relied upon by 28 July 2004”. By order 3, the applicant was on notice that a failure to file an amended application by that date may result in the respondent seeking summary dismissal of the application.

4. I also have before me today:

   1)An affidavit sworn by Patrick David Reynolds, a solicitor in the employ of the respondent’s solicitors, on 18 November 2004 with annexures:

   “A”. Being a copy of a letter dated 27 October 2004 sent by the respondent’s solicitors to the applicant asserting that:

   -a Registrar of this Court had made an order on 3 June 2004 that the applicant file and serve an amended application by 28 May 2004.

   [clearly the date used is in error as it predates the date of the Court’s order and does not reflect the date given on the Report of Listing on the Court file – in any event this issue is retrieved. (see below) Also a copy of the Short Minutes of Order showing the correct date is enclosed.]

   -a letter dated 1 September 2004 had been sent to the applicant granting a period of grace to the applicant to comply by 14 September 2004. [Copy attached.]

   -a statement that the applicant did not file and serve an amended application and that the matter had been listed in the Court’s non-compliance list for 7 December 2004.

   “B”. A copy of the envelope in which this letter was sent to the applicant at the address for service provided on his application.

   “C”. A copy of a letter dated 11 November 2004 advising the date of the listing in the non-compliance list to be

   
   

   3 December 2004.

   “D”. A copy of the envelope in which the letter was sent.

   2)An affidavit sworn, by Patrick David Reynolds, on 2 December 2004 which relevantly shows:

   a.    A report of a telephone conversation on 2 December 2004 between Mr Reynolds and the applicant where the applicant indicates he is sick and may not come to Court and in any event asserts that an amended application has just been filed.

   b.    Mr Reynolds’ statement to the applicant that filing an amended application is not enough- the amended application needs to show a case.

   c.    Mr. Reynolds attempts to obtain a telephone contact number for the applicant.

5. I also have before me:

   -a letter dated 21 June 2004 from the District Registrar of this Court addressed to the applicant at the address for service. I note that the address varies in one minor particular from the address for service provided by the applicant. I am satisfied that the Court sent notice to the applicant of referral to a panel lawyer on the Court’s Legal Advice Panel to the address for service provided by the applicant himself 

   -the Court's copy of a letter from the District Registrar to Ms Tina Jowett, a panel member of the Legal Advice Scheme, and in that letter Ms Jowett is provided with the address for service as provided by the applicant in his application to this Court

   -marked as respondent's Exhibit 1, copy of a letter from Ms Tina Jowett, barrister, addressed to the respondent Minister's solicitors, notifying the solicitors that she had been unable to contact the applicant, that she was making enquiries with real estate agents in the town of Griffith to locate the applicant, and seeking an extension of the timetable for the applicant to file an amended application and any evidence in support.  It is clear that the Court had notified the applicant, at the address for service that he had provided, of the referral to the panel solicitor, and had also written to the applicant at the address for service that he had provided in his original application, advising him of the referral and contact telephone number for Ms Jowett.

6. The applicant did file a purported amended application on 2 December 2004, and notwithstanding that, the respondent through her representative Mr Reynolds, before me today has sought that I dismiss the application on the basis that the amended application, or the purported amended application, lacks substance. Further, that the intent of the making of the Court’s order was to obtain from the applicant clear grounds for review, with full and proper particulars of each ground, which would go to establishing jurisdictional error on the part of the Tribunal. The respondent's submission is that the matters asserted in the purported amended application do not fulfil this requirement and therefore lack substance. The original application asserts that the Tribunal did not consider the threat to the applicant’s life if he were to return to India and the applicant is aggrieved because the decision was “not in my favour”. At best this document seeks impermissible merits review. I accept Mr Reynolds submission that in the absence of any grounds of review the Courts subsequent order must be seen in the context of seeking to draw from the applicant issues to be tried.

7. The applicant did appear today and, was unrepresented. He was assisted by an interpreter in the Hindi language.  The applicant advised me that he had not received any communication from the Court or from any lawyer - any panel lawyer of the Legal Advice Scheme. On the material before me, to which I have already referred, and on the applicant's inability to offer any acceptable explanation to the contrary, [for example, changing explanations in relation to whether he owned a telephone or not and thereby whether he was contactable by phone], and as against the matters asserted in the affidavit of Patrick David Reynolds dated 2 December 2004, I am satisfied that the applicant had the opportunity to obtain legal advice, and in particular I note that there is nothing before me to show that he did not receive from this Court advice relating to Ms Jowett and her contact details, and I note,  in the very least, that the applicant took no steps to contact Ms Jowett.

8. In relation to the amended application filed in this Court on

   
   

   2 December 2004 this was filed well beyond the date required by orders of this Court made on 3 June 2004 that it be filed by 28 July 2004. By way of explanation the applicant put to me, [and not contested] that the respondent, pursuant to order 1 of the Court made on 3 June 2004, was required to file and serve a bundle of relevant documents on or before 14 June 2004 and that these, in fact, were not filed until a day later on 15 June 2004, and served on the applicant some three or four days later. The applicant however was unable to satisfactorily explain why he still waited until 2 December 2004 to file his amended application.  The respondent was late in service by some three to four days, but this does not adequately explain why the applicant waited until 2 December to file his amended application as required by Court order 2, over four months after the required date. His further explanation that he was waiting for the next Court date, being 21 January 2005, does not go to explain therefore, and nor was he able to explain at the hearing what prompted the filing and serving of the amended application on 2 December 2004.

9. In all these circumstances it was appropriate to consider the respondent’s application for summary dismissal, and in particular to look, whether the document headed, "Amended Application" asserted any matters of substance to be tried.

10. The applicant’s refugee claims were particularly contained in a statement submitted to the respondent Department (CB 26-27), a copy of this was submitted with his application to the Tribunal. In summary the applicant asserted that formed a society by the name of the Indian Drug Free Society. This became part of a high profile national anti-drug campaign, and resulted in the applicant being persecuted by drug lords and corrupt politicians.

11. Looking at the amended application it asserts five grounds and each of those grounds has a particular in support. 

    1)Ground (a) is:

    “The Tribunal failed to take into account a relevant consideration when it assessed whether there was a real chance of the applicant being persecuted in India.”

    This is particularised by:

    “The Tribunal failed to consider in assessing the chance of the applicant being detained and/or persecuted on his return to India, based on the fact that his involvement with anti-drug campaign.” 

    To the extent that it may assert that the Tribunal did not take into account issues relating to the applicant's claimed persecution, a plain reading of the Tribunal's decision shows that the Tribunal did do so.  Nor did the applicant before me provide any further elaboration in relation to this point. The applicant claimed an interest in social welfare work as the motivation for the foundation of the India Drug Free Society, which he claimed brought him into conflict with drug lords and other criminal elements, and that protection from the authorities was not available. It is clear the Tribunal looked at all his claims and found against the applicant. Simply the lack of evidence and detail to support his claims which the Tribunal found should have been available, led it to not being satisfied that he had feared persecution. The applicant failed to satisfy the Tribunal that he had the requisite subjective fear of serious harm amounting to persecution. In this regard the Tribunal discharged its obligation [see CB 68]. The findings were open to it on the material before it and it gave reasons for these findings.

    2)Ground (b) is that:

    “The Tribunal failed to assess that the applicant's claims were within Convention reasons. 

    It is particularised by:

    “The Tribunal failed to assess the applicant's involvement with anti-drug movement fell within the microscopic meaning of the Convention for membership of a particular social group.”

    The Tribunal did assess the applicant's involvement with the anti-drug movement. It found that he did not suffer persecution. It gave reasons. To the extent that a reference to a membership of a particular social group now is an attempt to argue, that the Tribunal failed to properly consider the applicant's claims relating to the Convention reason of membership of a social group, it is clear that the Tribunal, again based on a plain reading of the Tribunal's record of decision, found at CB 60-70, that the Tribunal dealt with the applicant's claims as presented by the applicant and rejected them. In these circumstances it did not need to go on and consider further any nexus between persecution and Convention grounds.

    The respondent in this regard has also submitted that again on a plain reading, the Tribunal implicitly dealt with any elements that could be said to be relevant to membership of a particular social group. Further, there was clearly no such reference by the applicant in any of the material before the Tribunal. The reference to membership of a particular social group, and raising it at this time is an attempt by the applicant to characterise his claims before the Tribunal in a way that was not consistent with what he actually put to the Tribunal. There is some strength to this argument, but the answer to the applicant is that the Tribunal found that he did not have a well founded fear of persecution. A causal nexus to a Convention reason is therefore in these circumstances not relevant. The material before me in the relevant parts of the Court Book to which I have already referred show that the Tribunal was cognisant of the claims and the way that the claims were put by the applicant and it dealt with these claims.

    3)Ground (c):

    “The Tribunal erred in law in determining that there were adequate protection for the applicant in India.” 

    The particulars have essentially two parts:

    (i)“The Tribunal failed to assess at the event of this applicant's usual activities in relation to his anti-drug movement.”

    On a plain reading of the Tribunal's decision this is factually incorrect.  It did address the applicant's involvement with the anti-drug movement as I have said above.

    (ii)   The second part relates to adequate state protection for the applicant in India. In this regard the Tribunal found that the applicant did not have a well-founded fear of persecution within the meaning of the Convention, based on findings of lack of evidence and credibility, in particular the Tribunal’s rejection of the credibility of the applicant in relation to key matters put forward by the applicant.

    While accepting that the applicant had some involvement in anti-drug issues the Tribunal rejected, on lack of credibility grounds, that he had been persecuted.  Having made that finding it was not necessary for the Tribunal to consider the issue of State protection.  But as has been submitted to me, the Tribunal did make such reference, but only to deal with matters raised by the applicant himself. The Tribunal, at CB 68.4, found that it did not accept that protection was not forthcoming from police and authorities.

    4) Ground (d):

    “The Tribunal erred in law, determining that the applicant could relocate in other parts of India.”

    Again, I have already dealt with the State protection issue.  The other relevant part is the assertion that the Tribunal determined that the applicant could relocate in another part of India.  This ground cannot be made out because while the issue was discussed with the applicant (CB 67.5) no such determination appears to have been made by the Tribunal and, as has been submitted to me, there was no obligation on the Tribunal to consider relocation in the circumstances of this case, as presented by the applicant given the finding that he had not suffered persecution.

    5)Ground (e) appears to be a concluding statement containing nothing more than a reference to (a), (b), (c) and (d) above to the extent that it asserts error of law.  The particulars relied upon are matters that have already been dealt with.  That is, the applicant's involvement in the anti-drug campaign, the assertion of membership of a particular social group, the issue of State protection and the issue of relocation.

12. It is clear that the Tribunal took into account all of the matters put forward by the applicant in support of its application. The Tribunal made findings as to fact, including a finding on credibility, and it is well-established that these are matters for the primary decision-maker “par excellance”. The finding that the applicant had not established a subjective fear of persecution was fatal to his application. There is nothing in the amended application that directly addresses this issue and alleges such error on the part of the Tribunal as may amount to jurisdictional error. On the basis that the amended application does not disclose any such grounds [that can challenge the Tribunal’s decision] the respondent's application before me today must be upheld. And for these reasons I dismiss the applicant's application to this Court and dismiss, pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules .

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  9 March 2005