SZLIH & Anor v Minister for Immigration - [2008] FMCA 1034

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1034

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – applicants failed to appear twice before the Court – reinstatement application – application dismissed.

The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonyms “SZLIH” and “SZLII”.

First Applicant:

SZLIH

Second Applicant:

SZLII

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2856 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

14 July 2008

Delivered at:

Sydney

Delivered on:

14 July 2008

REPRESENTATION

Applicant:

The applicant appeared in person with the assistance of a Gujarati interpreter

Counsel for the Respondents:

Ms N. Johnson (solicitor)

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application filed on 14 September 2007 is dismissed.
The application filed on 31 March 2008 for reinstatement of the proceedings is dismissed.
The applicants are to pay the first respondent’s costs set in the sum of $800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2856 of 2007

SZLIH

First Applicant

SZLII

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from ex tempore reasons)

The applicant filed an application in the Federal Magistrates Court for judicial review on 14 September 2007. An accompanying affidavit of the applicant annexed a copy of the decision of the Refugee Review Tribunal (“the Tribunal”). The first Court date was listed for 30 October 2007 at 9.00am. There was no appearance by the applicants at that time and I made the following order:
Adjourn the proceedings for directions on 6 November 2007 at 9am at Court 6C, John Maddison Tower, Level 6, 88 Goulburn Street, Sydney.
There was no appearance by the applicants at the subsequent directions hearing at the listed time of 9.00am. The matter was stood down the list and re-mentioned at 9.35am but there was still no appearance by the applicants. I made the following orders:
1. The application is dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth) due to the failure of the applicant to appear.
2. The respondent by 13 November 2007 is to provide the applicant with written notice of today’s orders and inform the applicant of the applicant’s rights under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).
3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $1,000.
On 31 March 2008 the applicants filed a Notice of Motion seeking to have the orders of 6 November 2007 vacated and the matter reinstated for a hearing. The accompanying affidavit filed on the same date contained the following explanation:
1. On 6 November 2007 his Honour Lloyd-Jones FM passed an order dismissing my application as I was not present before the court. I cannot speak or write English. I depended on a person named Mr Rajesh Patel (Phone 0410534185) who told me that he was a lawyer and believing him that he would take care of my case I have paid him some money. Later after some time while I did not hear from him I enquired about him and from a friend I could find it out that he is not a lawyer and that he has been doing this with people in this manner. Because of his negligence and fraudulent action I did not know about the date of the case and ultimately the case was dismissed as I could not attend the hearing. I have also found that Mr Patel does not have any visa to remain in Australia.
2. I do not speak, read or write English, I believe that I have an arguable case.
The affidavit then set out four new grounds of alleged jurisdictional errors in the Tribunal decision.
The applicants appeared at today’s hearing and were assisted by a Gujarati interpreter. Ms Johnson, for the first respondent, requested to cross-examine the first applicant. The first applicant’s evidence was vague and despite the efforts of Ms Johnson he was evasive in his responses. However, it appears that after initially dealing with a Rajesh Patel, the applicants sought assistance from students studying in Griffith or visiting from Melbourne during holiday periods. The first applicant was unable to identify any of the students by name but it seems a number of them were involved.
The applicants’ claims referred to in the Tribunal decision relate to a failed business venture in the manufacture of submersible pumps. There was a dispute concerning payment of money which ended in litigation but the dispute was not finalised. This was effectively summarised in the Tribunal’s “Findings and Reasons” in the following passage:
On the facts before it, the Tribunal does not accept that an unfavourable ruling of the courts in the matter described by the applicant could reasonably be regarded as serious harm amounting to persecution. The applicant’s claim about having lost his business and therefore his livelihood is unreliable as he said earlier in the hearing that his business is still operating, although running at something of a loss due to the dispute over money owed. The threats against the applicant, if ever made, were, on the evidence before the Tribunal, not serious as the persons to whom the threats are attributed are evidently seeking a judicial, rather than extra-judicial, remedy to their grievance. The Tribunal finds no evidence of serious harm in this case amounting to persecution.
Meanwhile, the applicant did not suggest that the Courts or other authorities would be biased against him for any Convention-related reason.
As to the matter at the centre of this application, the dispute, now in the courts, over bills payments and cheques, the Tribunal is not satisfied that it has any relationship to the Convention. The applicant did make some reference to the religion and political opinions of the clients with whom he is disputing matters of money owing, but he also demonstrated that these were not factors causal to the disputes when he indicated that business with those clients proceeded unremarkable until disagreements arose over money owing. The Tribunal is not satisfied that any Convention-related factor is the essential and significant factor in the harm feared by the applicant which, as the Tribunal has already found, is not serious harm amounting to persecution.
I recognise that the original application filed on 14 September 2007 and prepared by Mr Patel, contains a number of errors, including the wrong post office box for delivery in Griffith, but I strongly suspect that might be the post office box of Mr Patel.
More importantly, the grounds of review identified in the application are not particularised and do not raise or identify a jurisdictional error contained in the Tribunal decision.
Similarly, the affidavit filed by the applicants on 31 March 2008 contains four alleged errors but, again, these are not particularised and do not bear any direct relation to the Tribunal decision of Luke Hardy (reference number 071481050).
The Court acknowledges that the applicants have suffered some difficulty in their application, mainly due to the incompetence of the people assisting them. Those people did not rely on the Tribunal decision which is the subject of review before this Court, but rather on general principles of administrative law which do not appear to bear any relation to the Tribunal decision. That places an obligation on the Court to independently review the Tribunal decision to determine whether the Court itself can identify any jurisdictional error.
The facts of the case as recorded in the Tribunal decision are fairly brief and appear to hinge on the first applicant claiming to suffer problems due to business arrangements involving himself and his brother in the production of submersible pumps. The brothers appear to have been involved at the intermediate stage of production in sourcing raw materials and the assembling of pumps.
The issues the first applicant has raised are business related and not Convention related.
On a fair reading of the Tribunal decision of 21 August 2007, it is not possible to identify any jurisdictional error from the face of that document as the issues raised by the applicants have been addressed. It is not apparent that any jurisdictional error arises from that decision.
In the circumstances, if this matter is prolonged and pursued further, it does not appear that there is any avenue for the applicants to identify an error, to file an amended application and be successful in an ultimate review.
Consequently, I dismiss the application for reinstatement.
I also dismiss the original application seeking judicial review and filed on 14 September 2007.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 23 July 2008