SZERX & Anor v MIMIA & Anor

[2006] HCATrans 440

[2006] HCATrans 440

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S137 of 2006

B e t w e e n -

SZERX

First Applicant

SZERY

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 AUGUST 2006, AT 10.36 AM

Copyright in the High Court of Australia

__________________

SZERX appeared in person.

MS T.L. WONG:   If the Court pleases, I appear for the first respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   There is a submitting appearance for the second respondent, which is the Refugee Review Tribunal. 

Are you the person who is known as SZERX?

SZERX (through interpreter):   Yes.

HIS HONOUR:   You understand that you are known in that way so that your real name will not appear in the record of the Court and thus in the Internet?  This is a requirement under the Migration Act which is applied to all courts, do you understand that?  It does not mean we do not respect your real name; it is simply for your protection.  I think you are appearing on your own behalf and on behalf of your wife, is that correct?

SZERX (through interpreter):   Yes.

HIS HONOUR:   Does your wife know that the matter is before the Court today?

SZERX (through interpreter):   Yes.

HIS HONOUR:   I think you have here a person who is a skilled interpreter in the Hindi language, is that correct?

SZERX (through interpreter):   Yes.

HIS HONOUR:   Do you ask the Court to provide you with assistance in that language so that you can understand the proceedings?

SZERX (through interpreter):   Yes.

HIS HONOUR:   Thank you for coming to the Court today, Mr Interpreter. 

RAKESH SANI, affirmed as interpreter:

HIS HONOUR:   Just sit down for a minute and I will hear from the Minister.  You have prepared an outline of written submissions on behalf of the Minister?

MS WONG:   I have, your Honour.

HIS HONOUR:   Have they been supplied to the applicants?

MS WONG:   I believe they have.  I might just check with the applicant.

HIS HONOUR:   Could you just ask the applicant if he has received the Minister’s outline of written submissions.

SZERX (through interpreter):   Yes.

HIS HONOUR:   Very well.  I have read those written submissions and I thank you for preparing them.  They are of assistance to the Court.  Once again, the period of time default is not very great.  I think the applicant became out of time by about a week, is that correct?

MS WONG:   I do not have any record of the orders actually being complied with by the applicant.  Perhaps your Honour has something on the record that I am not familiar with.

HIS HONOUR:   I have a notification in your outline of submissions that the applicant’s application was deemed abandoned from 7 June 2006.

MS WONG:   I now understand the eight-day period that your Honour is referring to.  Yes, it is correct that there has been only eight days delay.

HIS HONOUR:   When was it due to have been filed by?

MS WONG:   Twenty eight days from 10 May 2006, which would be ‑ ‑ ‑

HIS HONOUR:   That takes it to 7 June and in fact the summons seeking the extension was filed on 16 June, so that is where I got the notion that it is about a week out of time.  Is that correct?

MS WONG:   Yes, that is correct, your Honour.

HIS HONOUR:   Has there been an explanation for the time default in this case?

MS WONG:   An affidavit was filed by the applicant.  That affidavit states – and it is extracted in the submissions at paragraph 16.  It appears the affidavit was sworn 13 June and filed on 16 June 2006.  I hand up a copy if your Honour ‑ ‑ ‑

HIS HONOUR:   I do not know that I have the – this is the affidavit of service of a person who is the present applicant, is that correct?

MS WONG:   Yes, affidavit of service has been ‑ ‑ ‑

HIS HONOUR:   I will not name the person who is the deponent.  He sought to lodge the application by post.  They were returned to him and presumably, by the time they were returned, he had become out of time, is that the correct understanding of the facts?

MS WONG:   I did speak to the High Court Registry, your Honour, and they indicated that there would have been one or two days that would have been available upon the application being returned to the applicant for the applicant ‑ ‑ ‑

HIS HONOUR:   But the postal filing, if it had been valid, was within time?

MS WONG:   That is correct, your Honour.

HIS HONOUR:   So that we therefore have the case that a person who is not legally qualified assumed that he could file and lodge the application by post.  Had that been permissible under the Rules, he would have been within time.

MS WONG:   That is correct, your Honour.

HIS HONOUR:   So once again, one has a situation where the time default is really explained.  Does the Minister claim any prejudice by reason of the delay?

MS WONG:   The Minister does not claim any prejudice.

HIS HONOUR:   So it is again a matter whether the interests of justice require that the matter be restored to the list.

MS WONG:   Yes, your Honour.

HIS HONOUR:   Very well.  Have you understood that exchange that I have had with the Minister’s representative?

SZERX (through interpreter):   Yes, your Honour.

HIS HONOUR:   The Minister accepts that you tried to file your application by post and, although that was not permissible, had it been permissible, you would have been within time.  The Minister accepts that there is no prejudice to the Minister because you were a short time out of the time in filing your application correctly, but the Minister says that your case is hopeless and therefore that it would be cluttering up the list and a waste of your time and the Court’s time to restore the application to the list.  What do you say about that submission?

SZERX (through interpreter):   I need some more time to make submissions.

HIS HONOUR:   I am sorry?

SZERX (through interpreter):   I need some more time to make further submissions, approximately one week.

HIS HONOUR:   We cannot have matters – this is the highest court in Australia.  The matter has been listed before me, a Judge of the highest court in Australia, to hear your application today.  It is really just a waste of the Court’s time to be putting things over repeatedly, and I am afraid that I am not willing to do that.  Can I tell you what seem to me to be the problems you have in your case.  In the first place I do not see any unfairness or legal or procedural error on the part of the Tribunal or the courts below.  So far as the record is concerned, they appear to have handled your case lawfully and fairly to you.

Secondly, as I understand your case, you claim that you are a member of a recognised social group protected under the Refugees Convention, but that application is addressed to people who you contend have been threatening you in your former position as a sub‑officer in the stock exchange, which does not seem to me to be a recognised social group according to all the cases that have come before courts all over the world concerning refugee applications. 

So, on that basis, I feel that you would just be wasting your own time to continue this application because this Court can only deal with mistakes of procedural law and cannot rehear the whole matter.  In the light of that explanation of why we are here today, do you have anything to say why my preliminary thoughts about your case are mistaken?

SZERX (through interpreter):   No, your Honour.

HIS HONOUR:   Very well, you may sit down, thank you.  Ms Wong, is there anything that you wish to add to the Minister’s outline of written submissions?

MS WONG:   Only one additional point, your Honour, which is that the case is clearly distinguishable from cases such as Applicant S and other cases in which there was a particular social group which was raised on the facts which was not considered by the Tribunal.

HIS HONOUR:   How would you define the applicant’s assertion of a particular social group?

MS WONG:   The best definition appears in the application for special leave to appeal.  The applicant in that document states two categories of a particular social group to which he claims to belong, the first being defaulting debtors of private financiers in Ahmedabad who bribe the police, and the second being a similar category, debtors of …..Mehta in Ahmedabad who are defaulting on their payments.

HIS HONOUR:   We did have the case of the Russian, you remember?

MS WONG:   Dranichnikov.

HIS HONOUR:   Yes, Dranichnikov.  How does one distinguish this case from that case?

MS WONG:   In the case of Dranichnikov – and I am going from memory here, your Honour – I believe that the applicant in that case did refer to others who were in a similar position to himself who were experiencing forms of persecution.  I believe that the social group that the High Court there considered was businessmen who had come to the attention of the authorities and therefore had suffered some forms of persecution as a result, whereas in this case the claims made by the applicant were at all times personal to himself.  He did not assert that anyone else was in a similar situation to him.  Also, when a direct question was asked to him, “What is the basis of your claim?” he responded, “Political opinion”, and that was held not to have been satisfied on the evidence in this case.  So the claim

was expressly made and there were no other claims which were properly asserted.

HIS HONOUR:   All right, thank you very much.  Is there anything which the applicant wants to say in answer to what the representative of the Minister has just said?

SZERX (through interpreter):   Yes, there is a danger to my life.  My boss, Mr Mehta, there is a problem with him if I return back home because I could not pay back money to him, so there has been a problem.

HIS HONOUR:   I realise that but the Refugees Convention as incorporated in Australian law is concerned with certain specified grounds of fear.  It is not concerned with fear because somebody owes money or because their boss is violent or because of criminal activities by people back home.  So that is the problem of fitting his case into the category for which the Refugees Convention provides.  Is there anything else that you want to say to me?

SZERX (through interpreter):   No, your Honour.

HIS HONOUR:   Very well, you may sit down.

Before the Court is another application, in effect for an extension of time within which to permit the applicant’s application for special leave to proceed to consideration by a Full Court.  The applicant became out of time.  His application for special leave was deemed abandoned on 7 June 2006.  However, it was accepted during argument that, before that date, the applicant had endeavoured to file his arguments in support of his application in accordance with the Rules by posting them to the Registry.  This form of filing did not comply with the Rules of Court.  The applicant was therefore in default.  The documents posted to the Registry were returned to him.  When he then endeavoured to file them correctly, he was already out of time.

Very properly, counsel for the Minister has accepted that there would be, as I would hold, a sufficient explanation for the mistake in attempting to file the written case in support of the application for special leave out of time.  The Minister also properly accepted that no prejudice to her had been established by the time default.  She therefore did not resist the provision of an extension upon those grounds.  Instead, the Minister claimed that it would be futile to provide an extension of time to the applicant on the basis that the case for the applicant, as set out in the record, is unsustainable or not reasonably arguable.

Because it is always necessary in applications of this kind for the applicant to demonstrate that the interests of justice require, or suggest, the need for an extension of time, it is therefore necessary for me to consider this second element.  I have carefully examined the reasons of Federal Magistrate Smith and of Justice Rares, exercising the appellate jurisdiction of the Federal Court of Australia.  The applicant’s case did not fall into any of the recognised bases provided under the Refugees Convention of 1951, as amended and as incorporated into the domestic law of Australia. 

The only possible basis for attracting the application of the Refugees Convention is that provision which affords the obligation of protection in the case of membership of a specified “particular social group”.  The applicant contended that he fell within a “particular social group” in the country of his nationality, India.  In his application for special leave, he contended that he fell within one of two classes, namely defaulting debtors of private financiers in Ahmedabad who have bribed the police, and debtors of a particular person, his employer, in Ahmedabad, who are defaulting in their payments.

As identified by the applicant, these categories do not, in my opinion, attract the “particular social group” category referred to in the Convention.  In my view, the case is distinguishable from the comparatively recent decision of this Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 364, a case concerning events in the Russian Federation. The factual circumstances in that case were quite different from the alleged factual circumstances in this case. The present alleged circumstances appear to be purely of a personal kind or, at most, concern only alleged criminal activities in Ahmedabad in India.

Accordingly, the decision of the Tribunal appears to have been open to it.  Likewise, the decisions of the Federal Magistrate and of the Federal Court are not attended by doubt.  Neither of the judicial officers appears to have fallen into any error of law or of procedure.  Nor do I detect any want of procedural fairness to the applicant.  In fact, when the general fairness and lawfulness of the procedures in the courts below were drawn to the notice of the applicant, he raised no contention to the contrary.

The applicant has put his case before the Court in a polite and courteous manner.  It may be that he has some fear of returning to India.  However, the Tribunal and the courts below were not convinced that any such fear was for a Convention reason.  No arguable basis for the interference of this Court has been established. 

Accordingly, it is not in the interests of justice that the applicant’s case should be restored to this Court’s list.  For these reasons the application must be dismissed.  The applicant must pay the Minister’s costs.

Interpreter, would you explain to the applicant that I have dismissed his application and I have explained my reasons for doing so.  Those reasons will be typed up and they will be available to him.  I have ordered that he pay the Minister’s costs.  In this Court it is normal, where a person loses an application, that they have to pay the costs of the person who succeeds.  Those are the orders of the Court.  I express thanks to the interpreter for coming and assisting the applicant and the Court.

AT 11.02 AM THE MATTER WAS CONCLUDED