SZJBN v Minister for Immigration and Citizenship

[2007] FCA 868

FEDERAL COURT OF AUSTRALIA

SZJBN v Minister for Immigration and Citizenship [2007] FCA 868

SZJBN AND SZJBO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 445 OF 2007

STONE J
5 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 445 OF 2007

BETWEEN:

SZJBN
First Applicant

SZJBO
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	5 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicants pay the costs of the first respondent in the sum of $1000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 445 OF 2007

BETWEEN:

SZJBN
First Applicant

SZJBO
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	5 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants are a married couple who are citizens of India.  They arrived in Australia on 22 November 2005.  On 23 December 2005, the husband lodged an application for a protection visa, which included his wife as a family unit member; she made no independent claims.  The substance of the application was that the husband, a prominent Hindu, had been subject to persecution by the Muslim community and that the Indian authorities were unable or unwilling to protect him or his wife.  The application was rejected in turn by the delegate of the Minister and by the Refugee Review Tribunal. 

2. The Tribunal accepted the applicant husband’s evidence of his activities in the Hindu community, accepted that he had been assaulted on two occasions, and accepted that the applicant wife had been involved in an accident.  The Tribunal did not accept that these incidents were caused by the Muslim community.  It also rejected the husband’s evidence as to other incidents of persecution at the hands of Muslims.  The Tribunal held that the applicant had “exaggerated and or fabricated the alleged harm he had suffered”.  Even if this were not so, the Tribunal was satisfied that any persecution suffered was at the hands of non-state agents, and that the applicant husband “would be able to obtain state protection that would accord with international standards, for any harm that he fears.”  Finally, if the above two conclusions were incorrect, the Tribunal was satisfied that the applicants “could reasonably relocate to other parts of India”.

3. The applicants sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. They did not, however, appear at the final hearing of that application on 8 February 2007. Accordingly, on that day Smith FM dismissed their application for judicial review pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth). The applicants filed an application in the Federal Magistrates Court to set aside that order on 27 February 2007.

4. At a hearing before Smith FM, the applicant husband conceded that he had been made aware of the hearing date, but submitted that he had forgotten about it. The Federal Magistrate found that the applicant husband’s explanation had “much intrinsic implausibility”, and had “considerable doubts” as to whether it should warrant the setting aside of the dismissal. Additionally, having considered the applicants’ substantive arguments, his Honour held that he could “see no reasonable prospect that they would succeed” if he were to reinstate the matter. Accordingly, his Honour dismissed the application; [2007] FMCA 434.

5. His Honour’s decision was interlocutory and therefore the applicants require the leave of this Court before they can appeal from it; s 24(1A) Federal Court of Australia Act 1976 (Cth). They now apply for that leave.

6. An important consideration for the Court in deciding an application for leave is whether the appellant, should leave be granted, would have some prospect of success: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

7. The applicants’ draft notice of appeal sets out three grounds.  They allege that the Federal Magistrate erred when he dismissed the application because of the applicants’ non-attendance; they assert that the amended application to the Federal Magistrates Court contained arguable grounds of appeal which should have been ventilated; and finally, they repeat an attack upon the reasoning of the Tribunal that they raised before the Federal Magistrate.  That attack centred on what his Honour characterised as a “patent misreading of the Tribunal’s reasons”.  

8. In written submissions before this Court, the applicants submitted that Smith FM’s discretion miscarried when he dismissed the substantive proceedings on 8 February, as he had not taken sufficient account of the applicants’ written submissions filed in the Federal Magistrates Court.  It is their argument that those written submissions should have been sufficient to allow the Federal Magistrate to decide the issue in the applicants’ favour, even in their absence.  The remainder of their written submissions to this Court and the arguments put at today’s hearing are of marginal relevance to the issue in question, which is whether the Federal Magistrate erred in dismissing the application for reinstatement.  The main thrust of the submissions was to take issue with the merits of the Tribunal’s decision which, as is well established, is a matter with which this Court cannot intervene.

9. As noted above, the Federal Magistrate exercised his discretion to dismiss the reinstatement application because he did not believe the applicants’ explanation for their failure to appear; because, even if that explanation were plausible, it would not justify setting aside the dismissal of the substantive application; and because, having undertaken an exhaustive analysis of the Tribunal’s reasons and of the applicants’ substantive arguments, he was not satisfied that those arguments could succeed.  The Federal Magistrate’s exercise of discretion is only reviewable by this Court if it is affected by an error, such as acting upon a wrong principle, being guided by an extraneous or irrelevant consideration, a mistake of fact or a failure to take a material consideration into account; House v The King (1936) 55 CLR 499. No such error is discernable in the Federal Magistrate’s decision. Accordingly, the application must be dismissed with costs.

10. The applicants must pay the costs of the first respondent and I am satisfied that it would be in the interests of all parties if the costs were to be set at a fixed amount, namely $1000.  I shall so order.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        5 June 2007

The Applicant appeared in person, assisted by an interpreter.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 June 2007
Date of Judgment:	5 June 2007