SZHNW v Minister for Immigration & Anor
[2007] FMCA 534
•18 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHNW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 534 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. PRACTICE AND PROCEDURE – Show cause hearing – arguable case. |
| Migration Act 1958, s.425 Federal Magistrates Court Rules 2001 , rr.1.06, 44.12 |
| General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 |
| Applicant: | SZHNW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2888 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 February 2007 |
| Date of Last Submission: | 5 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2007 |
REPRESENTATION
The applicant in person.
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The matter will be listed for final hearing.
Pursuant to r.1.06, the matter will proceed as if the parties had dispensed with the show cause hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2888 of 2006
| SZHNW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings claims to fear persecution in Sri Lanka from the Liberation Tigers of Tamil Eelam.
He has had three separate hearings before the Refugee Review Tribunal which have resulted in decisions made on 14 April 2004, 20 September 2005 and 23 August 2006. In the decision of the Tribunal dated
23 August 2006 it is recorded that on 16 September 2005 the applicant’s then adviser made a post hearing submission to the Tribunal as then constituted summarising the applicant’s claims as follows:
In 1995 the Applicant was working as a seaman between Colombo and Jaffna.
On one trip he was involved in checking the boxes containing batteries being off loaded from the ship.
Some of the labourers were stealing batteries from the boxes, a situation which would have led to his dismissal because he had to strictly account for the goods because the batteries would be used in explosive devices.
He ordered them to desist from stealing and some of them became aggressive and punches were traded.
Later on the same day two men came to the ship and after taking his personal diary and some money, asked the Applicant to go with them because they were displeased with his actions earlier in the day.
They showed their LTTE identification.
The Applicant refused to go with them and the man took out a gun and pointed at the Applicant’s head.
Fearing for his life, the Applicant struggled with this man and managed to disarm and hit him on the back of his head with an iron bar. He was severely injured.
The Applicant then ordered the other man at gun point to take his friend away and the ship sailed back to Colombo shortly after.
The Applicant heard the man he had struck with the iron bar died from his injuries.
The Applicant received a letter from the LTTE in September 1995 stating that because of his cruel actions in killing the LTTE member [a] death warrant has been made against him.
In its most recent decision, the Tribunal stated that it did not accept that the LTTE had threatened the applicant or had a continuing adverse interest in him such that they were awaiting his return to Sri Lanka in order to kill him.
The Tribunal also accepted that the applicant suffers from anxiety and an obsessive compulsive disorder.
The grounds of the application in these proceedings are:
a)that the Tribunal hearing was delayed by at least 30 minutes;
b)at the commencement of the hearing a glass of water spilt over the applicant’s papers making them impossible to read;
c)the spilling of the water on the applicant’s papers flustered him and he couldn’t answer the Tribunal’s questions properly;
d)the Tribunal did not give proper consideration to the applicant’s claims as the Tribunal member had been delayed; and
e)the applicant’s depression level was high and he could not concentrate properly on the questions which were being put to him.
The matter was listed for a show cause hearing under r.44.12 of the Rules of the Federal Magistrates Court and the first respondent submitted that the applicant had not raised an arguable case.
The authorities show that an application should not be dismissed under r.44.12 unless the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), or the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
As set out in the amended application, the grounds which have been raised by the applicant are not proper grounds of judicial review. However, reading between the lines it seems that the applicant is saying, amongst other things, that he was not afforded a real and meaningful hearing as required by s.425 of the Migration Act. If the applicant had framed some of his application in terms of an alleged breach of that section then, based on the material contained in his application a final, rather than interlocutory, disposition of the matter would be appropriate.
As it seems that amongst the applicant’s claims there is an allegation that he was not afforded a proper hearing under the Migration Act as was his right and he has provided particulars of how that is said to have been manifested, he has demonstrated that he has an arguable case.
Consequently, I am satisfied that notwithstanding the deficiencies in the pleading in the amended application, the applicant has raised an arguable case for the relief claimed in the amended application.
Therefore, the matter will be adjourned pursuant to Part 44.12(b) to a final hearing. As the applicant has only demonstrated an arguable case on the papers and has not filed an affidavit going to the substantive issue in the proceedings I do not consider it appropriate that the first respondent be called upon to show cause why the relief claimed by the applicant should not be granted, which is what rule 44.12(b) contemplates. Rather, pursuant to rule 1.06 the matter shall proceed as if the parties had dispensed with the show cause hearing. The applicant will bear the onus of making out his entitlement to the relief he seeks.
The orders of the Court will be that the applicant having demonstrated an arguable case:
(1) The matter will be listed for final hearing.
(2) Pursuant to r.1.06, the matter will proceed as if the parties had dispensed with the show cause hearing.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 18 April 2007
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