SZEVQ v Minister for Immigration (No.2)
[2005] FMCA 866
•30 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEVQ v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 866 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – applicant claimed political persecution in India – judicial review application dismissed when applicant failed to appear at a directions hearing. PRACTICE & PROCEDURE – Motion for reinstatement of judicial review application – whether sufficient explanation advanced for non appearance of the applicant – claim of non receipt of correspondence by the applicant. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 424A(1), 424A(3)(a), 474, 477(1A), 477(2), 483A
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(c), 13.10, 16.05(2)(c)
Federal Court Rules, Part 19 Rule 3
Ponnuswamy v Australian Electoral Commission [2002] FCA 1086
Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 340
NALE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 366
Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502
Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
Walton v Gardiner (1993) 177 CLR 378
Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306
R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 76 ALR 256
Second Life Décor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
Re Minister Immigration & Multicultural Affairs Ex Parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealthof Australia (1999) 197 CLR 510
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
| Applicant: | SZEVQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2101 of 2004 |
| Delivered on: | 30 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 14 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr D Bell of Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2101 of 2004
| SZEVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was brought before the Court by the applicant as a Notice of Motion seeking to have the interlocutory judgment made by me on 12 April 2005 set aside (SZEVQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 574). On 28 April 2005 the applicant filed an application (“the application to set aside”) seeking inter alia that the orders made by me on 12 April 2005 be dismissed. However, I will treat the present application as an application made pursuant to Rule 16.05(2)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) seeking to vary or set aside an order of this Court.
The proceedings
This was an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 September 2002 and handed down on 25 September 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 25 April 2001 to refuse to grant the applicant a protection visa.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEVQ”.
Background
The applicant, who claims to be a citizen of India, arrived in Australia on 9 March 2001. On 23 March 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-28) (“CB”). On 25 April 2001 the delegate refused to grant a protection visa (CB pp.29-37) and on 9 May 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.38-41).
In his visa application, the applicant stated he is a citizen of India and was born in July 1964 in Kuchera, Rajasthan. He claims to speak, read and write Hindi and is a Muslim. The applicant stated he resided at the same address from 1991 to 2001 when he departed India for Australia. He claimed he underwent eleven years of education and listed his occupation as a self-employed farmer. The applicant departed India on a passport issued in the usual manner and without difficulty by the Indian Government on 13 April 1992 which was valid until 12 April 2002. The applicant stated he is married with five children (CB pp.4-17).
Hearing – 12 April 2005
The matter was scheduled for hearing in a Notice of Motion list at 12.15 p.m. on 12 April 2005. Despite providing the applicant with a period of grace of twenty minutes, there was no appearance by the applicant. In the absence of the applicant, I dismissed the matter pursuant to Rule 13.03A(c) of the Rules which is a dismissal of the application in default of appearance of a party. The applicant did not lose any substantive right by dismissal and was entitled to apply to the Court to set aside the orders if he wished to do so. The applicant has now chosen to exercise that right.
Application to set aside the orders
For the purpose of this Notice of Motion the applicant filed an application and an accompanying affidavit sworn on 28 April 2005 (“the affidavit of the applicant”). The respondent applied for the affidavit of Dean Anthony Bell sworn on 9 June 2005 (“the affidavit of Mr Bell”) to be admitted into evidence. A Court Book prepared by the respondent’s solicitors was filed and served on 29 October 2004.
This Notice of Motion has been treated as an application made pursuant to Rule 16.05(2)(c) of the Rules seeking to set aside the orders made by this Court on 12 April 2005.
The test to apply in determining the application to set aside is set out by Hely J in Ponnuswamy v Australian Electoral Commission (“Ponnuswamy”). In that decision, Hely J approved of the approach of Driver FM in the Federal Magistrates Court in refusing an application made pursuant to r.16.05(2)(c) to vacate an order dismissing an application for non-appearance by the applicant on the basis that:
a)the explanation provided by the appellant for failing to attend the hearing was neither sufficient nor plausible;
b)the appellant failed to contact the Court in advance to secure an adjournment; and
c)the application, if reinstated, did not have a reasonable prospect of success.
Mr Bell, Solicitor appearing for the respondent, submitted that each of the conditions set out by Driver FM and approved by Hely J in Ponnuswamy at [5]-[7] was satisfied to the extent that the application to set aside the orders of this Court of 12 April 2005 be dismissed. In the affidavit filed on 28 April 2005, the applicant provided reasons for his non-appearance at the hearing on 12 April 2005 as follows:
1.I was very sick and was suffering from back pain. I was not aware of any new hearing. I just received the notification of the hearing date on 12 April 2005. By the time I received the letter the hearing in the court was over and an inter-locutory application by the respondent was granted in my absence.
2.I wouldn’t be absent from the hearing if I would have known about the new hearing date. Moreover, being a non lawyer I did not understand what to do in that situation.
In respect of the applicant’s first reason for non-appearance at the hearing relating to his ill-health, as stated above, the respondent noted that the applicant had not sought to adduce any medical evidence of his alleged condition. In evidence from the bar table, the applicant claimed he was admitted to St Vincent’s Hospital at the time of the scheduled hearing and when asked if he had a medical certificate covering this period of hospitalisation the applicant indicated he had filed a copy of the medical certificate with the Court Registry. An examination of the file did not reveal any medical certificate or file note referring to it.
In respect of the applicant’s first reason for non-appearance at the hearing relating to notification of the hearing date, as stated above, it was submitted that on 4 April 2005 a letter notifying the applicant of the date, time and place of the hearing of the Notice of Motion, and enclosing a copy of the Notice of Motion, was:
a)forwarded by the respondent to the applicant by express post at his address for service as noted in his amended application; and
b)forwarded by the respondent to the applicant by courier to the applicant’s address for service as noted in his original application.
A letter dated 8 April 2005, notifying the applicant of the date and time of the hearing of the Notice of Motion, and enclosing a copy of the respondent’s outline of submissions and an affidavit of Dean Anthony Bell dated 6 April 2005, was:
a)forwarded by the respondent to the applicant by express post at his address for service as noted in his amended application; and
b)forwarded by the respondent to the applicant by courier to the applicant’s address for service as noted in his original application
In these circumstances, the respondent submitted that the applicant was provided with notice of the hearing of the Notice of Motion in accordance with Part 19 Rule 3 of the Federal Court Rules.
In respect of the applicant’s second reason for non-attendance, noted in paragraph 10 above, it was submitted that if the applicant received the letters from the respondent, referred to above, giving him notice of the hearing of the Notice of Motion, it was not necessary for the applicant to be legally represented in order to appreciate the importance of the applicant attending Court at that time. The letter sent to the applicant on 4 April 2005, in addition to informing the applicant of the date, time and place of the hearing of the Notice of Motion, stated:
“It is important that you attend Court at that time. The Minister will ask the Court to make the orders set out in the notice of motion.”
The respondent submitted, for the reasons set out above, the applicant had not provided a sufficient or plausible explanation for his failure to appear in Court at the hearing of the Notice of Motion on 12 April 2005 and there was no evidence that the applicant attempted to contact the Court to seek an adjournment.
The applicant confirmed from the bar table that the residential address to which the correspondence was forwarded remained his residential address but problems existed because a number of other people were also residing there and correspondence was sometimes mislaid or not provided to the residents promptly. No explanation was provided to the Court as to the operation of the post office box as noted on the applicant’s amended application.
At one stage the applicant suggested that he was unaware of this matter until he received a letter from the respondent’s solicitors advising him of the outcome of the Court on 12 April 2005. However, this position was abandoned by the applicant in favour of the position that he only became aware of the hearing on the actual day. Attempts by the Court to clarify the actual date of notification and the applicant’s claim of hospitalisation were unsuccessful. The third test of whether the applicant had a reasonable prospect of success was the significant issue to be resolved in this matter.
Applicant’s prospects of success
Mr Bell, Solicitor appearing for the respondent, submitted that the application did not have reasonable prospects of success, on the basis that:
a)the application was frivolous or vexatious;
b)the application was otherwise an abuse of process; and
c)the application was not filed with 28 days of notification of the decision sought to be reviewed, as required by s.477(1A) of the Act, and therefore this Court did not have jurisdiction to try it.
The applicant’s previous proceedings
On 23 March 2001, the applicant lodged an application for a protection visa (Class XA) with the Department. The application was refused by a delegate on 25 April 2001.
On 9 May 2001, the applicant applied to the Tribunal for review of the delegate's decision. On 25 September 2002, the Tribunal handed down its decision, affirming the delegate's decision to refuse to grant the visa.
The Tribunal’s decision
The applicant claimed to fear persecution for reason of his political opinion – he alleged that he was one of the principal coordinators of a Muslim organisation in Rajasthan in India, making him and his family the target of certain Hindu groups identified by the applicant. In its reasons for decision, the Tribunal:
·principally rejected the applicant’s claims on credibility findings and found that as a result he did not have a genuine fear of persecution from the Hindu groups;
·found that relocation to another part of India was a viable option for the applicant since the Hindu groups’ interest in him was of a local and low-level nature; he had an Indian passport suggesting that he was not a security concern, and relocation was reasonable given the applicant’s education and young age. This finding of itself obviated the need to determine whether the applicant had a well-founded fear of persecution in his home area; and
·found that the applicant did not have a fear of persecution based on his religious beliefs since it was unlikely that he would be caught up in communal violence and the evidence showed that Indian authorities sought to suppress such violence at the earliest opportunity.
The bases of the credibility findings by the Tribunal were that:
·the applicant's involvement with a Muslim organisation (the Congress party) was minimal and locally based making it unlikely that the Hindu groups had any adverse interest in the applicant, and his claims to the contrary were not credible;
·the applicant's claims that his father was gravely injured, and later died as the result of attacks by the Hindu groups were unsubstantiated by documentary evidence and, the Tribunal concluded, were raised in an attempt to enhance the applicant's claim;
·the applicant gave contradictory evidence regarding his location in 1999 and 2000, claiming to be both living in Bombay and Delhi , and also “always” living on his farm in Rajasthan; and
·the applicant’s claim that he had been living in threat of danger and would be killed upon return to India were implausible, as no efforts were made in the past to harm or kill him.
First application for judicial review
On 22 October 2002, the applicant applied under s.39B of the Judiciary Act 1903 to the Federal Magistrates Court for judicial review of the Tribunal’s decision of 25 September 2002 (proceedings SZ1040/2002) (the first application). The applicant was legally represented in respect of the first application. The apparent grounds in the first application were:
a)The Tribunal exceeded its jurisdiction in making its decision to affirm the delegate's decision; and
b)Constructively failed to exercise its jurisdiction in arriving at its decision.
On 10 March 2003, by consent of the parties, the first application was dismissed with costs.
Second application for judicial review
On 8 July 2004, the applicant filed a further application in this Court (the second application) seeking review of the Tribunal's decision of
25 September 2002. On 19 January 2005, the applicant filed an amended version of the second application (the amended second application). The grounds of the amended second application were:
a)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;
b)the Tribunal failed to assess that the applicant's claims were within Convention reasons;
c)the Tribunal erred in law in determining that there was adequate protection for the applicant in India;
d)the Tribunal erred in law in determining that the applicant could relocate in other parts of India;
e)the Tribunal erred in law in not asking itself the right question;
f)the Tribunal erred in law by not disclosing the country information that it relied on; and
g)the Tribunal took the decision in bad faith.
Frivolous or vexatious or otherwise an abuse of process
The respondent submitted that even if the amended second application was reinstated, it did not have reasonable prospects of success because it would be summarily dismissed pursuant to Rule 13.10 of the Rules. Rule 13.10 enables the Court to dismiss a proceeding summarily if, inter alia, it is frivolous or vexatious or otherwise an abuse of process: see Kosi v Minister for Immigration & Multicultural & Indigenous Affairs; NALE v Minister for Immigration & Multicultural & Indigenous Affairs (“NALE”). The respondent submitted there were a number of bases upon which the amended second application was frivolous or vexatious or otherwise an abuse of process.
a) Res judicata
The respondent submitted the order of the Court made on 10 March 2003 dismissing the first application gave rise to res judicata in respect of the amended second application. The principle of res judicata applies in the case of a Court judgment by consent of the parties: Chamberlain v Deputy Commissioner of Taxation (ACT) (“Chamberlain”); Somanader v Minister for Immigration & Multicultural Affairs (“Somanader”).
The first application gave rise to res judicata in respect of all of the grounds set out in the amended second application on the basis that both applications gave rise to substantially the same cause of action. Because the order dismissing the first application was made after the decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) (4 February 2003), the applicant could have raised bias or procedural fairness in the first application.
In both the first application and the amended second application, the applicant sought judicial review under s.39B of the Judiciary Act 1903 in respect of the same Tribunal decision. Whilst the grounds of the amended second application were identified with greater precision, they were arguably encompassed within the unparticularised grounds of excess of jurisdiction or failure to exercise jurisdiction contained in the first application.
The respondent submitted that if res judicata was found to apply, there was no discretion in the Court to allow the amended second application to continue. By operation of law the cause of action relied upon by the applicant has ceased to exist: Chamberlain; Somanader.
b) Anshun estoppel
Even if res judicata did not apply, the respondent submitted in the alternative that the applicant would be estopped from raising all of the grounds contained in the amended second application on the basis of the doctrine in Port of Melbourne Authority v Anshun Pty Ltd (“Anshun”). It has been held that this doctrine bars an applicant from raising “every issue that properly belonged to the subject of the earlier litigation and which the [party], exercising due diligence, might have brought forward at the time of the earlier litigation”: Wong v Minister for Immigration & Multicultural & Indigenous Affairs. Unlike res judicata, Anshun estoppel provides the Court with a discretion to permit a party to raise an issue which the party would otherwise be estopped from raising if there are "special circumstances" such that the party should be permitted to raise the issue.
On the face of the amended second application, there were no such special circumstances in this case. The applicant had adduced no evidence of such "special circumstances". Furthermore, the respondent submitted that the fact that the applicant was legally represented in respect of the first application weighs against the exercise by the Court of its discretion, because the Court hearing the first application would have had jurisdiction to hear the claims raised in the amended second application and the applicant failed to raise them in circumstances in which he was legally represented.
c) Abuse of Court process
Even if the amended second application was found to give rise to neither res judicata nor Anshun estoppel, the respondent submitted that the amended second application was an abuse of the Court's process on the basis that it was seeking to litigate anew a case already disposed of in earlier proceedings. The respondent referred to the following statement of principle in Walton v Gardiner by Mason CJ and Deane and Dawson JJ at 393:
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. … Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.” (emphasis added)
In Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs, Wilcox J found that the doctrine of res judicata applied. His Honour then observed, however, at [18]-[19]:
“If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner ….
The proceedings, being groundless on their face, are an abuse of process.”
The respondent submitted that these authorities stand for the proposition that a person may be prevented by the doctrine of abuse of process from re-litigating questions that have already been decided, or that should already have been decided, by a competent court: R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd.
The applicant, by way of the first application, previously made an application for review of the Tribunal decision in this Court. That application was determined by order of the Court. To the extent that the applicant, by way of the amended second application, sought to agitate new matters in respect of the Tribunal's decision, the respondent submitted the applicant should properly have raised these matters in the first application. In short, the applicant had an opportunity, in the first application, to argue the grounds of review he sought to raise in the amended second application, which opportunity was foregone by the applicant consenting to orders dismissing the first application.
A proceeding is also an abuse of process if, regardless of its merits or prospects of success, it is brought as a means of obtaining some advantage for which the proceeding is not designed or some collateral advantage beyond what the law offers: Second Life Décor Pty Ltd v Comptroller-General of Customs. The respondent submitted that it could be inferred from the above that the amended second application had been made for the purpose of delay to extend the applicant's period of lawful stay in Australia. Such an inference was drawn in by the Court in NALE.
The respondent contended that, if the amended second application was reinstated, it would be liable to dismissal pursuant to Rule 13.10 of the Rules for the reasons given above. Accordingly, the amended second application did not have reasonable prospects of success, and the order of Court made on 12 April 2005 should not be set aside.
Competency of the application
Section 477(1A) of the Act relevantly provides that an application to the Federal Magistrates Court under s.483A in respect of a privative clause decision must be made within 28 days of the notification of the decision. The time limit in s.477(1A) only applies to privative clause decisions, that is only decisions that are not tainted by jurisdictional error: Plaintiff S157/2002. Where there has been a prior determination of a matter, a Court can deal with a notice of competency at an interlocutory stage: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs (“SZBML”).
The effect of the Court order made by consent on 10 March 2003 dismissing the first application was that the Tribunal decision was not affected by jurisdictional error, and was therefore a privative clause decision. Because the Tribunal decision had been determined by this Court to be a privative clause decision, the Court does not have any jurisdiction in respect of the second application (or the amended second application) by reason of the fact that the second application was filed after the time prescribed by s.477(1A) of the Act: SZBML.
If the respondent's submissions above in respect of the competency of the amended second application were not accepted by the Court, the respondent further submitted that the amended second application was without merit, and that no jurisdictional legal error was disclosed by the Tribunal decision.
The respondent made the following submissions in respect of each of the grounds raised by the applicant in the amended second application:
a)In respect of the applicant’s claim that 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; the particulars provided by the applicant in respect of this ground were that 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 he is a Muslim minority”.
Clearly, the Tribunal separately considered the applicant's claim that he feared persecution because he is from a Muslim minority. In respect of this claim, the Tribunal found that the chances of the applicant being the victim of communal violence were "remote and insubstantial". The Tribunal further found that, in the unlikely event the applicant was caught up in communal violence, the independent evidence indicated that the Indian authorities sought to end it at the earliest possible opportunity and that persons considered to be inciting communal violence could be persecuted under Indian law. It was submitted there was no basis for this ground of claimed legal error by the Tribunal.
b)In respect of the applicant’s claim that the Tribunal failed to assess that his claims were within Convention reasons, the particulars provided for this ground were that the Tribunal: “failed to assess the applicant's involvement with Congress Party and Muslim society fell within the meaning of the convention for political opinion and religion and membership of particular social group”.
The Tribunal, in its reasons, considered the applicant's claims of fear of persecution based on political opinion (fear of harm from BJP, RSS and Shiva Sena based on the applicant's involvement in the Congress Party) and on religion (fear of harm based on the fact that he is from the Muslim minority). The applicant's claims both before the Department and the Tribunal did not expressly, and nor can they impliedly be construed to, include a claim of fear of persecution on the basis of membership of a social group. There was no basis for the applicant's claims that the Tribunal failed to properly consider his claim. In any event, the Tribunal concluded: “Having given consideration to the evidence as a whole, the Tribunal is not satisfied that the applicant has a well founded fear of harm either for reason of his political opinion, religion or any other Convention reason in India in the reasonably foreseeable future.” (CB p.85)
c)In respect of the applicant’s claim that the Tribunal erred in determining there was adequate protection for the applicant in India, the particulars provided for this ground were that the Tribunal: “failed to assess at the event of this applicants usual activities in relation to his Muslim community, the state would be unwilling to or unable to offer him protection from extremists”.
The Tribunal considered the applicant's claims in respect of his activities as a low-level local functionary in the Congress Party and the Tribunal did not consider the claims to be credible. Credibility findings are the function of the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham. The respondent submitted the Tribunal's reasons for decision demonstrate that the Tribunal exercised caution in reaching its conclusions on credibility (Abebe v Commonwealthof Australia at 577-78), and gave the applicant an opportunity to comment on all matters of concern to the Tribunal.
d)
In respect of the applicant’s claim that the Tribunal erred in determining he could relocate in other parts of India, the particulars provided for this ground were that the Tribunal
“… failed to assess whether there would be state protection and hence the assessment in relation to relocation was a mistake. There was nothing before the Tribunal to determine that state protection would be available to any part of India at the event the applicant was involvement with Muslim community. The Tribunal also erred in law determining the applicant would not have any problem at the event of relocation. The Tribunal did not assess the possibility of a relocation alternative at the event the applicant continues his involvement with the Muslim community in the way he was doing in his habitual place of residence.”
The thrust of the applicant’s claim appeared to be that the Tribunal either did not consider the applicant to be a Muslim in finding that it was reasonable for the applicant to relocate within India, or alternatively it failed to consider his "involvement with the Muslim community" in finding that it was reasonable for the applicant to relocate within India. The applicant did not elaborate upon how it was that these matters made it unreasonable for him to relocate within India. It was clear that a range of considerations may need to be considered, extending beyond physical or financial barriers, in determining whether relocation was reasonable: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (“Randhawa”) per Gleeson CJ at 270.
At the hearing the Tribunal asked the applicant why he could not move to another part of India and the applicant's response was that he was wanted all over India. Ultimately, the Tribunal did not accept this evidence. The applicant was provided by the Tribunal with an opportunity to explain why relocation was not a reasonable option for him based upon his being a Muslims or his "involvement with the Muslim community", and failed to do so. The Tribunal's consideration of the issue of relocation was careful and thorough, and involved a correct statement and application of the principles in Randhawa in finding that relocation was a "reasonable and feasible option for the applicant". The respondent submitted that there was no basis for the applicant's claim of legal error in this regard.
e)In respect of the applicant’s claim that the Tribunal erred in not asking itself the right question, the particulars provided for this ground were that the applicant: “… was asked whether he could relocate in another part of India and away from the problem in Rajasthan. But the Tribunal did not ask whether it was possible for the applicant to be safe in any place of India if he was away from the type of activity he did in Rajasthan”.
The Tribunal found that, even accepting the applicant's claims in respect of his adverse interest to the BJP, Shiva Sena and RSS, the interest was local and low-level and the applicant did not have any profile outside Rajasthan which would place him at risk. Accordingly, the Tribunal was satisfied that “the applicant would be out of reach of his problems in other parts of India outside Rajasthan”, and therefore the applicant did not face any risk of persecution outside Rajasthan. The respondent submitted that the Tribunal correctly applied the test for relocation, and that there was no legal error in the Tribunal's reasons for decision in this regard.
f)In respect of the applicant’s claim that the Tribunal erred by not disclosing the country information it had relied on, the particulars of this ground were that the Tribunal: “failed to disclose independent information it relied while assessing the claims. The Tribunal also did not disclose the questions it had while assessing the credibility of the claims. Thus, it breached s424A of the Act”.
Two distinct allegations were raised in this ground. Firstly, in respect of the independent country information, there was no indication from the Tribunal's reasons for decision as to whether or not this information was provided to the applicant by the Tribunal. No evidence was provided by the applicant in this respect, and the respondent submitted that, in the absence of such evidence, the Court was not in a position to find, on the Tribunal's reasons for decision only, that the Tribunal failed to put the independent country information to the applicant. In any event, the country information falls within the exception to s.424A(1) contained in s.424A(3)(a) of the Act on the basis that, in each case, the independent country information was information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”: see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs. The relevant country information here related to relocation within India, and to communal violence and the Indian authorities' response thereto.
In respect of the applicant’s second claim, that the Tribunal “did not disclose the questions it had while assessing the credibility of the claims”, the respondent contended that the Tribunal's reasons for decision clearly indicated the Tribunal shared its concerns with the applicant by putting to him the perceived inconsistencies in his evidence during the course of the hearing. There was no evidence from the applicant before this Court to the contrary.
g)In respect of the applicant’s claim that the Tribunal “took the decision in bad faith”, the particulars of this ground were that: “Some parts of the Tribunal reason records are contradictory with its own references on what guideline it would assess the claims. The Tribunal also did not ask itself the right questions. The Tribunal also watered down the seriousness of some aspects of the claims.” These particulars were insufficient for the respondent to respond to in any meaningful way. The respondent submitted that there was no basis for a finding of bad faith on the part of the Tribunal.
Counsel for the respondent submitted that, for the reasons set out above, there was nothing on the face of the Tribunal's decision to indicate error, let alone jurisdictional error. In the absence of jurisdictional error, the decision of the Tribunal is a privative clause decision, therefore the time limit in s.477(1A) of the Act applies. The applicant was notified of the Tribunal's decision on 7 October 2002, however the application was not filed until 8 July 2004, which was not within 28 days of the notification of the decision. Counsel for the respondent submitted that this Court has no jurisdiction to extend the time for the making of such applications: see s.477(2) of the Act. The respondent submitted that the second application was not made within time, and was therefore incompetent. In these circumstances, the respondent submitted, the amended second application did not have reasonable prospects of success.
Conclusion
The solicitor for the respondent provided the Court with detailed analysis of the test in Ponnuswamy to determine whether an application to set aside a previous decision of the Court has been made out. The applicant did not file any evidence in support of his application and relied on limited oral submissions from the bar table. The submissions made in support of his claim regarding the failure to attend the hearing were inconsistent and unsupported by any documentary evidence. The applicant may have been a patient at St Vincent’s Hospital at about the time of the scheduled hearing, however the oral submissions made from the bar table contained no specificity or clarity as to the date or duration of this hospitalisation. Although the applicant was encouraged to provide these details orally during the hearing, this invitation was neither accepted nor pursued.
The applicant indicated that he did become aware of the hearing at a time close to the scheduled hearing date but there was no record of him having contacted the Court or the respondent solicitors to provide details of his hospitalisation going to his failure to appear at the hearing. As I have indicated earlier, there is no record on file of any medical certificate that was claimed to have been filed with the Registry.
If the application was reinstated, the applicant’s prospects of success appeared to be limited by a number of issues that appear insurmountable. This applied both in respect of the application being limited by res judicata, estoppel and Anshun estoppel and alternatively the pleaded grounds not demonstrating any avenue of success. The ultimate result was that the application had no reasonable prospects of success. In the circumstances, I believed the Notice of Motion should be upheld and the substantive application dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 June 2005
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