SZCZH v Minister for Immigration
[2005] FMCA 768
•6 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZH v MINISTER FOR IMMIGRATION | [2005] FMCA 768 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application for reinstatement of judicial review application dismissed for non appearance of the applicant at a directions hearing – insufficient explanation for the applicant’s non appearance – no serious issue to be tried. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.483A |
| NAIJ v Minister for Immigration [2002] FMCA 225 SHLB v Minister for Immigration [2004] FCA 254 SZDJY v Minister for Immigration [2005] FMCA 765 |
| Applicant: | SZCZH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 701 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 6 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms L Gazi Australian Government Solicitor |
INTERLOCUTORY ORDERS
The motion filed on 4 March 2005 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 701 of 2004
| SZCZH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion of which notice was given on 4 March 2005 seeking the reinstatement of a judicial review application. The judicial review application had been filed on 12 March 2004 but was dismissed on 4 February 2005 when the applicant failed to appear at a directions hearing. That order was made by Registrar McIllhatton. The registrar ordered that the judicial review application be dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and that the Minister notify the applicant of the orders within seven days. The applicant was also required to pay the Minister's legal costs.
Relevant background facts are set out in written submissions prepared on behalf of the Minister. I adopt as background paragraphs 3-6 of those submissions:
On 12 March 2004, the applicant filed an application pursuant to s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) in the Sydney registry of the Federal Magistrates Court through his solicitors Ward Maxwell & Co. The application sought review of a decision of the Refugee Review Tribunal (“the RRT”) dated 23 January 2004 and handed down on 13 February 2004.
On 16 July 2004, the matter was listed for first directions hearing. Orders were made by the Court pursuant to consent orders signed by the parties. Order 2 required the applicant to file and serve an amended application, setting out fully detailed particulars of the grounds relied upon, together with any affidavit material to be relied upon, on or before 10 September 2004. No amended application was filed.
On 27 January 2005, the applicant’s solicitors filed a notice of ceasing to act and an affidavit sworn by Mr Ejaz Khan on 25 January 2005.
The matter was listed for further directions hearing on 4 February 2005. On this occasion, there was no appearance on behalf of the applicant and the matter was dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules.
I note that the reinstatement motion came before me on 14 March 2005, when I adjourned the motion for hearing today. The motion for reinstatement is supported by an affidavit by the applicant filed on 4 March 2005. The applicant deposes that around November 2004 he moved to Sydney. He deposes that he did not receive correspondence from his former solicitors following that move. He deposes that at about the end of January 2005 he telephoned his former solicitors to provide them with his new address. He deposes as to a conversation that he had with his then solicitor, Mr Khan, in which Mr Khan informed him of the directions hearing on 4 February 2005. Mr Khan also told the applicant that his firm had ceased to act for the applicant because of his failure to correspond with them. I note that a notice of ceasing to act was filed on 27 January 2005 by the applicant's former solicitors. I also note that in an affidavit made on 25 January 2005 the applicant's former solicitor states that his firm had lost contact with the applicant.
In his affidavit, the applicant deposes that on or about 2 February 2005 he received copies of all correspondence forwarded to his previous address. He also deposes that he was suffering from various medical conditions which were exaggerated due to the "news", which I take to mean the news that his solicitors had ceased acting for him. Attached to the applicant's affidavit is a psychologist's report by a Dr Salu Dean. The report is dated 3 March 2005 and recites the applicant's history. The doctor offers a diagnosis of the applicant’s condition of generalised anxiety disorder. The doctor also offers the opinion that it would be beneficial to the applicant to be permitted to remain in Australia.
The Minister caused a subpoena to be issued to the doctor requiring his attendance at court today for the purposes of being examined in relation to his report. The doctor gave evidence that he was first consulted by the applicant on or about 6 or 7 February 2005. He stated that he saw the applicant about two more times subsequently, culminating in a visit on 3 March 2005 when he prepared his report. He had not seen the applicant since that time. The doctor stated that he had been asked to prepare his report for the purposes of the motion for reinstatement. The doctor was asked whether he could point to any difference between the applicant's ability to attend Court today and his asserted inability to attend Court on 4 February 2005. The doctor referred to a handbook for the treatment of psychological disorders and quoted from a section pointing to persons with the applicant's condition having problems at work and in interpersonal functioning.
Based upon the material before me I make the following factual findings. The applicant lost contact with his former solicitors between the first court date in this matter and the callover directions conducted on 4 February 2005. That occurred because the applicant had failed to advise his former solicitors of a change of address. The solicitors ceased to act for the applicant consistently with the rules of this Court. The applicant was aware in late January 2005 of the directions hearing to be conducted on 4 February 2005. He received all documents that might have been relevant for that directions hearing some two days before the directions hearing. The applicant did not attend the directions hearing and neither did he inform the Court of his inability to attend prior to the directions hearing. The applicant now suffers from a generalised anxiety disorder. There are several possible precipitants for that condition. They include uncertainty over the applicant's future in Australia, the fact that his former solicitors ceased to act for him and the fact that his application for judicial review was dismissed on 4 February 2005.
It was only after that dismissal that the applicant sought medical attention. His condition has not prevented him from attending Court today. Bearing in mind these factual findings it is necessary to consider whether circumstances have been advanced warranting the vacation of the orders made by Registrar McIllhatton.
It is plain from earlier decisions of this court including the Court's decision in NAIJ v Minister for Immigration [2002] FMCA 225 that the circumstances in which the Court will vacate a dismissal order are limited. It is also apparent from the decision of the Federal Court in SHLB v Minister for Immigration [2004] FCA 254 that the Court ought not to intervene to vacate a dismissal order unless the circumstances are exceptional. There are two relevant considerations for me. The first is whether the circumstances for the applicant's non-attendance have been sufficiently explained. The second is whether the circumstances of the dismissal result in injustice meriting the vacation of that order.
The applicant has not explained why he did not contact the Court in order to advise of his asserted inability to attend, other than to point to his present medical condition. Following his conversation with his former solicitor and his receipt of relevant documents there was no other impediment on him attending. The applicant took no action until his judicial review application had been dismissed. While the circumstances of the applicant are unfortunate he is, to a significant degree, the author of his own misfortune. The applicant's medical condition did not prevent him seeking medical assistance shortly after his judicial review application was dismissed. It did not prevent him attending Court today. I am not persuaded that it would have prevented him at least contacting the Court to advise of his asserted inability to attend the directions hearing on 4 February 2005.
I find that the circumstances of the applicant's non-attendance on 4 February 2005 do not of themselves warrant the vacation of the dismissal and costs orders. In addition, having regard to the terms of the judicial review application and the decisions and reasons of the RRT, I find that the judicial review application did not raise a significant issue to be tried. Ms Gazi deals with that aspect of the matter in paragraphs 16-33 of her written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
Application for review
The respondent further submits that it would be futile to allow the applicant’s application for review of the RRT’s decision to be reinstated, as it does not disclose any arguable ground of review. Each ground of review is addressed in turn.
Ground one
The first ground of review simply indicates when the decision of the RRT was handed down.
Ground two
In the second ground of review, the applicant claims that the RRT erred in failing to give sufficient weight to his evidence, especially in relation to attempts on his life and the fact that the applicant was forced to withdraw from his studies.
This, in the respondent’s submission, is merely an attempt on the part of the applicant to cavil with the merits of the RRT’s decision.
It is clear from the face of the decision record that the RRT considered in detail the applicant’s evidence in relation to the claimed attempts on his life and his being forced to abandon his studies[1], but simply did not accept the applicant’s evidence in relation to these claims. In arriving at this finding, the RRT noted that the claimed attempts on his life were not mentioned in the initial protection visa application[2]. The RRT questioned the applicant on this issue,[3] such that the applicant was on notice of the RRT’s concerns in this regard. The RRT also found that the applicant was not able to explain at hearing how or why he was forced to abandon his education[4]. The respondent submits that such findings were available to the RRT on the evidence and as such, no error is revealed in this approach.
[1] Relevant Documents (“RD”), pp.95 to 96
[2] RD, p.99
[3] RD, p.96
[4] RD, p.101
Ground three
In ground three, the applicant claims that the RRT erred in finding that the actions of the persons who had placed pressure on the applicant’s father did not amount to persecution under the Refugees Convention.
Again, in the respondent’s submission, this is an attempt by the applicant to challenge the merits of the RRT’s decision.
The RRT put to the applicant that the dispute involving the family farm appeared to it to be private dispute and not related to any Convention ground[5]. The applicant responded that his family are supporters of the Akali Dal party and that the men who want the land are members of the opposing Congress Party[6].
[5] RD, p.97
[6] ibid op cit
The RRT found that the applicant’s father was involved in a private dispute with another individual or individuals who wish to acquire his land[7]. It was satisfied that the only harm suffered by the applicant’s father was that two individuals have vigorously sought to persuade him to sell his land. The RRT was not convinced that the conduct of these individuals concerned had involved violence to any person. In light of this, the RRT concluded that there was no real chance that the applicant or any member of his family will suffer serious harm amounting to persecution[8]. The RRT also did not accept the possibility that the applicant was at risk of harm because his family were supporters of the Akali Dal Party[9]. These findings were open to the RRT on the available evidence and as such, there can be no error in RRT’s findings in this regard.
[7] RD, p.101
[8] ibid op cit
[9] RD, p.102
Ground four
In ground four of the application, the applicant claims that the RRT erred in failing to give sufficient weight to the applicant’s claims that family members were tortured and his family relocated to avoid physical attack.
This, in the respondent’s submission, is also an attempt on the part of the applicant to challenge the merits of the RRT’s decision. The RRT clearly considered these claims[10] but found that the evidence in relation to them was vague and contradictory[11] and accordingly, did not accept that the applicant’s father and brother had been tortured as claimed. Again, this finding was open to the RRT on the evidence and accordingly, no error is demonstrated in this approach.
[10] RD, pp. 96 and 99-100
[11] RD, p.101
Ground five
It appears that, in this ground, the applicant is claiming that the contradictory nature of the claims as set out in his initial application and the evidence given at the RRT hearing was due to his limited English, education level and the instructions he provided to his migration agent.
This ground of review has no basis whatsoever. The issue of whether the applicant’s limited English could account for the applicant’s failure to include the information given at hearing in his protection visa application was specifically discussed by the RRT[12]. It found that there were no substantial communication difficulties between the applicant and his migration agent in relation to the protection visa application. This ground of review cannot be sustained.
Ground six
In ground six, the applicant alleges that the RRT erred in applying a “very narrow definition of the term ‘persecution’”.
The RRT set out very detailed definitions of persecution in its decision.[13] It simply did not accept the applicant’s evidence in relation to the harm he claimed to have suffered himself. It also found that his family’s circumstances related to a private dispute with individuals who wished to acquire the applicant’s father’s land and therefore did not amount to persecution.
The respondent submits that there is no basis for this ground of review.
Ground seven
Finally, in ground seven, the applicant claims that the RRT fell into jurisdictional error and/or denied him natural justice by failing to give proper weight to various parts of the evidence that were before it that were supportive of the applicant’s claims.
Again, this is an attempt by the applicant to cavil with the findings of the RRT. In light of the inconsistencies between the evidence given by the applicant in his initial application for a protection visa and that given by him at hearing and its findings as to the applicant’s credibility, the RRT simply did not accept the applicant’s claim in relation to the harm he claims to have suffered in India. There is no denial of natural justice in the circumstances.
[12] RD, p.99
[13] RD, pp.92 and 98
I dismiss the motion filed on 4 March 2005.
On the question of costs, the motion having been dismissed, Ms Gazi seeks an order for costs fixed in the sum of $1,900. Consistently with the matter of applicant SZDJY v Minister for Immigration [2005] FMCA 765, dealt with by me at 10.15am this morning, I am persuaded that costs of $1,800 have been reasonably and properly incurred on behalf of the Minister in dealing with this matter. The applicant sought time to pay. I will not require the costs to be paid by any particular time.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $1,800.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 June 2005
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