SZJOT v Minister for Immigration and Citizenship

[2008] FCA 1438

FEDERAL COURT OF AUSTRALIA

SZJOT v Minister for Immigration and Citizenship [2008] FCA 1438

Federal Court Act 1976 (Cth)
Federal Magistrates Court Rules 2001

SZJOT v Minister for Immigration [2008] HCASL 344

SZJOT and SZJME v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1291 OF 2008

REEVES J
19 SEPTEMBER 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1291 OF 2008

BETWEEN:

SZJOT
First Applicant

SZJME
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	19 SEPTEMBER 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

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 1291 OF 2008

BETWEEN:

SZJOT
First Applicant

SZJME
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	19 SEPTEMBER 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for leave to appeal under s 24(1A) of the Federal Court Act 1976 (Cth) against the judgment of Federal Magistrate Raphael delivered on 31 July 2008. The Federal Magistrate dismissed the applicants’ application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 17 October 2006, on an application of the first respondent made under Order 13 rule 10 of the Federal Magistrates Court Rules 2001, on the dual grounds that it was an abuse of process and had no prospects of success.

   FACTUAL BACKGROUND

2. The applicants are a wife and husband who are citizens of India.  The applicant wife (‘the applicant’) applied for a protection visa on 5 May 2006, on the basis of her claimed fear of persecution in India by reason of her political opinion. The applicant husband made no independent claims but sought protection as a member of his wife’s family unit. 

3. The basis upon which the applicant claims to fear persecution in India is a set out at pages four to five of the Tribunal’s Decision Record, as follows:

   ‘From 1991 to 2000 she was working in different places within the agriculture industry.  At this time she was actively involved in the communist trade unions.  Consequently, her employment was terminated by many of her employers for various reasons.  She left the communist trade union and became a member of the Radical Workers Union (RWA or the Naxalite Trade Union) which was under the control of Communist Party of India (Marxist-Leninist) (CPI(ML)).  She later became a member of CPI(ML).  She left India due to her “past political and social activities with CPI(ML) group”.

   She was taught political classes in Marxist-Leninist and Mao’s principles and her family was drawn to communist principles.  On many occasions she was involved in big industrial actions demanding pay rise and incentive for workers.  The party and the companies labelled them “hardcore Naxalites”.  The were dismissed by these companies and many cases were pending against them in the courts in Kerala.  She travelled around the State of Kerala organising political classes for peasants and women.  As a result she became “the most wanted person by the Kerala State authorities.  She was separated from her family and remained in hiding until she was able to come to Australia.  Her family supported her political involvement with her party “CPI(ML) People’s War Group”.  If she were to return to India she would be killed by “Hindu fanatics (RSS group), CPI(M) and Congress leaders” because she has exposed their corrupt activities’.

   THE TRIBUNAL’S DECISION

4. The Tribunal found the applicant not to be a credible witness in view of the inconsistencies between her written and oral claims, and it dismissed her claims of past persecution on that basis stating:

   ‘For all the above reasons the Tribunal did not find the applicant to be a credible witness.  The totality of the applicant’s evidence shows a propensity to exaggerate and tailor her evidence in a manner which achieves her own purpose.  In view of the applicant’s credibility and the Tribunal’s previous findings rejecting the applicant’s claim of membership of the PWG, the Tribunal does not accept that the group has turned against her for having stopped her activities or that she has any fear of harm in relation to the outfit.  Nor does the Tribunal accept that she has fear of harm in relation to CPI(M), the Congress Party of India, BJP or other Hindu groups for the reasons she has provided’.

   THE PROCEDURAL HISTORY SINCE THE TRIBUNAL’S DECISION

5. On 26 October 2006, the applicant applied to Federal Magistrates Court for judicial review of the Tribunal’s decision.  That application was dismissed by the Federal Magistrates Court on 10 October 2007. The applicant then appealed to this Court on 26 October 2007.  Justice Lindgren dismissed that appeal on 29 February 2008. The applicant then sought special leave to appeal that decision in the High Court (SZJOT v Minister for Immigration [2008] HCASL 344). That application was dismissed by Justices Hayne and Crennan on 12 June 2008. On 24 June 2008, the applicant then applied again to the Federal Magistrates Court to review the Tribunal’s decision. As noted above (see [1]), it is that application that forms the basis of this second Federal Court appeal.

   GROUNDS AND CONTENTIONS

6. At the hearing before me on 18 September 2008, the applicant appeared in person, unrepresented, but assisted by an interpreter and Ms Buchanan appeared for the first respondent.

7. Ms Buchanan made written and oral submissions, to the effect that leave should be refused because the appeal would have no prospect of success and the refusal would not be unjust.

8. In support of her application, the applicant filed an affidavit (sworn on 15 August 2008) and an outline of written submissions with a number of letters attached. However, despite the directions given by a District Registrar of this Court on 18 August 2008 that the applicant file a draft notice of appeal, that has not occurred. Nonetheless there are relevant matters set out at paragraph 3 of the applicant’s affidavit:

   ‘My grounds for judicial review are:

   (a)My central Convention claim of my fear based on my Latin Catholic religion stated in my 866 visa application was not assessed by the Tribunal.  Therefore the Tribunal did not exercise its power.

   (b)The Tribunal did not comply with the requirement of section 424A of the Migration Act 1958 as the Tribunal did not invite me for my written comments on the information appeared in its finding and reasons which was adverse to me.’

9. Two observations can be made about these grounds. First, they appear to be the same as those grounds raised before the Federal Magistrate. Secondly, they make no attempt to identify any error on the part of the Federal Magistrate - being the primary purpose and focus of an appeal to this Court from the Federal Magistrates Court.  Nonetheless, I will assume these are the grounds the applicant wishes to pursue in her appeal to this Court and proceed on that basis to consider whether she should be granted leave to proceed with that appeal.

10. An order made under Order 13 rule10 of the Federal Magistrates Court Rules 2001 is by definition an interlocutory order.  In an application for leave to appeal from an interlocutory order, the applicant is required to demonstrate that the decision of the Federal Magistrate is attended with sufficient doubt to warrant it being reconsidered and that substantial injustice will result if it is not reconsidered. In my view, the applicant has failed to meet these requirments for the following reasons.

11. I consider that the applicant has failed to demonstrate any error in the Federal Magistrate’s conclusion that these proceedings are an abuse of process. The history preceding these proceedings is set out above (see [5]). From that history it is clear that the applicant is attempting to engage in a second round of review of the same Tribunal decision, delivered on 17 October 2006. She has already been unsuccessful in reviewing that decision in the Federal Magistrates Court, before Justice Lindgren on an appeal in this Court and on a special leave application before the High Court.  On any view, this is a clear abuse of the processes of the Federal Magistrates Court and this Court.

12. Further, the applicant has failed to demonstrate any error in the Federal Magistrate’s other conclusion; that the applicants’ application for judicial review had no reasonable prospects of success. I consider that there was no error in the Federal Magistrate’s conclusion that the Tribunal did not fail to consider the applicant’s claim (that she had suffered religious persecution) based upon the evidence before his Honour that the applicant did not make any such claim in her visa application. Further, I consider there was no error in the Federal Magistrate’s conclusion that the country information relied upon by the Tribunal in its decision fell within the exception in s 424A(3)(a) of the Act.

    CONCLUSION

13. I therefore order that this application for leave to appeal be dismissed.  I will hear the parties on the question of costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        19 September 2008

Applicants:	In person
Counsel for the First Respondent:	Ms L Buchanan
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	18 September 2008
Date of Judgment:	19 September 2008