SZFYO v Minister for Immigration - [2005] FMCA 1262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFYO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1262

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of judicial review application as disclosing no reasonable cause of action.

Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration v Wu Shan Liang(1996) 185 CLR 259

Applicant:

SZFYO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 736 of 2005

Judgment of:

Driver FM

Hearing date:

2 September 2005

Delivered at:

Sydney

Delivered on:

2 September 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms E Warner Knight
Australian Government Solicitor

INTERLOCUTORY ORDERS

The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 736 of 2005

SZFYO

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a motion by the respondent Minister of which notice was given on 2 August 2005 seeking the summary dismissal of a judicial review application filed on 23 March 2005. The judicial review application is in relation to a decision of the Refugee Review Tribunal (“the RRT”) made on 16 April 2002 and handed down on 9 May 2002. The Minister seeks the summary dismissal of the judicial review application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on the basis that no reasonable cause of action is disclosed.
The Minister's motion is supported by the affidavit of Elizabeth Warner Knight made on 1 August 2005. I also have before me the court book filed on 26 April 2005. Ms Warner Knight also prepared written submissions which were filed in my chambers on 8 August 2005. In addition, she presented oral submissions.
This matter came before me on 30 August 2005. At that time there was no appearance by the applicant. The Court was, however, able to contact the applicant by telephone. She advised that she had not received correspondence relating to the hearing of the Minister's motion, notwithstanding that she had not changed her address and notwithstanding that several letters had been sent both to her residential address and to her post office box. I gave the applicant the opportunity to appear at an adjourned hearing today and she took that opportunity. She also collected from the Minister's solicitor’s office the correspondence and documents that she said she had not received.
Ms Warner Knight deals with the facts and circumstances relating to the applicant's protection visa application and the decision of the RRT on it in her written submissions. I adopt as background paragraphs 4‑12 of those written submissions:
The applicant is a citizen of India. She is a Sikh from the Punjab. She arrived in Australia in January 1999. She lodged an application for a protection visa on 4 April 2000.
On 5 June 2000 a delegate of the respondent refused the application for protection visa[1]. On 4 July 2000, the applicant applied for review of this decision by the RRT[2]. The RRT, after conducting a hearing which the applicant attended, made a decision which was handed down on 9 May 2002. That decision affirmed the delegate’s decision not to grant a protection visa. [3]
On 23 March 2005, the applicant filed an application in the Federal Magistrates Court pursuant to s.39B of the Judiciary Act 1903 (Cth) seeking review of the RRT’s decision.
The matter came before the Court for directions on 7 April 2005. On that day, orders were made by consent, including an order that the applicant file and serve an amended application together with any affidavit material relied upon on or before 19 July 2005.
No amended application has been served upon the respondent and it appears that none was ever filed. The application does not identify any grounds of review but merely re-states some of the applicant’s factual claims .[4]
On 2 August 2005 the respondent filed the present a notice of motion pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules and supporting affidavit. On the same day a copy of the notice of motion and affidavit was posted to the applicant at both her address for service (a PO Box address) and the street address which appears on the Court application.
The applicant’s claims in her Protection Visa Application and to RRT
The applicant claimed her family forced her to come here as a student because she had been having an affair with either an “anti-religious” boy or a boy from another religion. She feared persecution from the boyfriend’s parents, as he had subsequently gone missing, from the parents of a girl he was to marry, as she had committed suicide and from her own family and other persons in her religion and caste.
The RRT’s reasons and decision
It was noted that the applicant claimed in her original application that she had returned to India to attend a wedding, however, in the application for review to the RRT she claimed that she had not been invited by her family and she had returned to find out what had happened to her boyfriend. At the hearing, she again stated that she had returned to attend a wedding but she had not returned to her home city. At the hearing, it was clarified that the events with the boy had occurred 3 years before leaving India. The RRT put to her that this suggested none of the 3 families were interested in physically harming her. She confirmed that she would not be hurt physically but emotionally. The RRT noted that she claimed that if he returned to India she would not be able to get married because she had had an affair, which was not convention related (even if accepted that this amounted to persecution) and that while she had previously suggested her problems were related to religion, this no longer seemed to be the basis. The RRT specifically asked her if she claimed any difficulty as a member of a social group of unmarried women in India and she said she did not.
The RRT found that there was no real chance that the applicant would suffer harm such as harassment, assault or death as a result of the incidents which occurred surrounding her relationship with the boyfriend. Nor was it accepted that she had any well founded fear of persecution for a convention related reason.
[1] court book, page 28
[2] court book, page 33
[3] court book, pages 50-59
[4] Annexure ‘D’ to the affidavit of Elizabeth Warner Knight affirmed 1 August 2005.
Ms Warner Knight deals with the application for judicial review in paragraphs 13 and 14 of her written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
The applicant in her grounds of review, resurrects the claims which were essentially abandoned at the hearing. She claims that she fears death from the boy’s family as well as “fear of harassment, disappointment, serious harm and fear of leading a normal life”. The “grounds” do not set out any grounds of review, rather they repeat the claims previously made by the applicant.
As mentioned above, the amended application filed by the applicant does not identify any ground of review. The applicant appears to be seeking merits review and the Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272.
That said, I would not dismiss the judicial review application summarily if I thought the significant problems in it could be solved by an amended application or by the presentation of additional evidence.
In this matter there was a directions hearing before Registrar McIllhatton on 7 April 2005. The applicant attended in person. She did not require an interpreter and neither did she require an interpreter today. The applicant consented to orders which relevantly required any affidavit evidence from her, including any transcript of the RRT hearing, to be filed and served no later than 19 July 2005. Nothing has been filed. The applicant was also required to file and serve an amended application with particulars by the same date. No amended application has been filed.
The applicant has had the benefit of receiving legal advice from an adviser appointed pursuant to the Minister's Panel Advice Scheme. In these circumstances, I take the view that if the applicant had been able to improve upon her judicial review application and support it by evidence, she would have done so. She told me this morning that she had been unable to obtain information from India that might support her claims but those claims do not relate to any legal issue concerning the decision of the RRT. They relate to the asserted fear of the applicant.
On my own reading of the RRT decision, I see no possibility whatsoever of a successful legal attack upon it. The applicant had claimed a well-founded fear of serious physical harm in her original protection visa application. She resiled from that position at the hearing before the RRT. The presiding member said[5]:
The Applicant said that if she were to return to India she would not be able to get married because all her relatives knew about her affair with the Muslim boy. The girl whom her boyfriend had been supposed to marry had committed suicide and the girl's relatives were angry with her. She said that in the Indian community if one had an affair before marriage it was impossible for one to get married. I noted that in her original application the Applicant had suggested that she feared physical harm from her family, her boyfriend's family or this girl's family if she returned to India. I noted that it appeared that these events had happened in 1995 or 1996 and she had remained in India for three years before coming to Australia. I put to the Applicant that this suggested that none of the three families were interested in doing her physical harm. The Applicant said that she would not be hurt physically but she would be hurt emotionally.
I noted that even if I were to accept that being unable to get married amounted to ‘persecution’ for the purposes of the Convention, the harm she feared did not appear to bear the requisite relationship with one of the five Convention reasons. There was no suggestion that race, nationality or political opinion was involved. In her original application she had suggested that her problems related to religion. However, while I could accept that her family would have opposed her marriage to a Muslim because of the religious difference, her evidence was that the reason why she would not be able to get married was that she had had an affair before marriage. I noted that there did not appear to be a ‘particular social group’ involved. The Applicant said that there were just the three families involved. I noted that ‘women in India’, for example, might be considered to be a ‘particular social group’ for the purposes of the Convention and I asked the Applicant if she would face problems, other than those she had described, as an unmarried woman in India. She said that she would not. She said that the Sikhs and the Muslims traditionally did not get along.
[5] court book, pages 55 and 56
Under the heading of “Findings and Reasons for Decision”, the presiding member said:
As set out above, at the hearing before me the Applicant resiled from her claims in her original application that she feared physical harm if she returned to India. Having regard to the Applicant's evidence that her affair with the Muslim boy, his refusal to marry the girl to whom he had been engaged and his subsequent disappearance took place some years before the Applicant left India, I do not accept on the evidence before me that there is a real chance that, if the Applicant returns to India, she will suffer assault, harassment or death at the hands of her own family, her boyfriend's family or the family of the girl whom her boyfriend was supposed to marry.
I accept the Applicant's evidence that she will not be able to get married if she returns to India but, as I put to the Applicant in the course of the hearing before me, even if I were to accept that her inability to get married amounted to ‘persecution’ for the purposes of the Convention, the harm which she fears does not appear to bear the requisite connection with one of the five Convention reasons. The Applicant's evidence is that she will be unable to get married because she had an affair before marriage. It does not appear to me that she will be unable to get married for reasons of her religion and none of the other four Convention grounds appear to be relevant. I raised with the Applicant whether she would face particular problems as an unmarried woman in India but she said that she would not. She said that traditionally the Sikhs and the Muslims did not get along but there is nothing in the evidence before me to suggest that, if the Applicant returns to India now or in the reasonably foreseeable future, there is a real chance that she will be persecuted by reasons of her religion.
Frankly, it appears to me that the applicant has a well-founded fear of unhappiness in India rather than a well-founded fear of persecution. Once the applicant had abandoned her claims of a fear of physical harm and once she had confirmed that she would not suffer problems as an unmarried woman in India, there remained no basis upon which the presiding member could make a favourable decision for her.
I have considered whether on the basis of the applicant's claims the presiding member might have considered whether there existed in India a social group of unmarried women who have had an affair before marriage and hence are unmarriageable. Whether or not such a particular social group may exist in India, the applicant's fear was that she would be unable to marry. It is well established that a particular social group cannot be constructed by reference to the fear held by the applicant. In those circumstances, such a particular social group could not be constructed in order to support a protection visa claim.
I see no possibility whatsoever of the applicant being able to establish a jurisdictional error in the decision of the RRT. In these circumstances, the high test for summary dismissal of a judicial review application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules has been met and I will so order.
On the issue of costs, Ms Warner Knight seeks an order for costs fixed in the sum of $3,500 when assessed on a party and party basis. The Minister's actual costs to this point are in the region of $5,000. The applicant submits that the sum sought is excessive and she would not be able to pay it. Her ability to pay is not relevant but the question is whether the costs as sought have been reasonably and properly incurred on behalf of the Minister.
I explored with Ms Warner Knight the basis of the costs claim. The Minister has had to prepare a court book and written submissions and affidavit evidence in order to support the motion for summary dismissal as well as to prepare for a possible future hearing. There have been three hearing events in this case, those being the first court date before Registrar McIllhatton and two hearing dates before me. The matter could not proceed on 30 August 2005 because of the absence of the applicant. I accepted that the applicant had not received correspondence sent to her but the reason for that appears to have been that someone in the house she was living in returned the correspondence to sender without reference to the applicant, and she had been somewhat tardy in clearing her mailbox and so had not discovered the copies of the correspondence sent to that address. The inability of the matter to proceed on the last occasion was not the fault of the Minister. To the extent that any fault can be attributed it is the fault of the applicant. She should bear in those circumstances the costs thrown away by reason of the adjournment of the hearing to today.
Taking those matters into consideration, 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 $3,000.
I note that the Refugee Review Tribunal has not been joined as a respondent to the proceedings. It should have been. I will further order that the Refugee Review Tribunal be joined as the second respondent to the proceedings.

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

Associate:

Date: 7 September 2005