SZLRR and Anor v Minister for Immigration and Anor (No.2)

[2008] FMCA 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLRR & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2008] FMCA 422

MIGRATION – RRT decision – Indian applicant – application for judicial review dismissed at a show cause hearing – application to set aside – no grounds shown – application dismissed.

Federal Magistrates Court Rules 2001 (Cth), r. 44.12(1)(a)
Migration Act 1958 (Cth)

SZATV v Minister for Immigration & Citizenship [2007] HCA 40
SZLRR & Anor v Minister for Immigration [2008] FMCA 328

First Applicant: SZLRR

Second Applicant: SZLRS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3662 of 2007

Judgment of: Smith FM

Hearing date: 26 March 2008

Delivered at: Sydney

Delivered on: 26 March 2008

REPRESENTATION

Counsel for the Applicants: In Person

Counsel for the First Respondent: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The notice of motion filed on 12 March 2008 is dismissed.

2. The applicants must pay the first respondent’s costs in the amount of $550.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3662 of 2007

SZLRR

First Applicant

SZLRS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In this matter I made orders on 26 February 2008, dismissing the principal application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on the ground that it did not raise an arguable case for the relief claimed. I gave ex tempore reasons which were translated to the applicant, and subsequently these were revised and published to the parties (see SZLRR & Anor v Minister for Immigration [2008] FMCA 328).

2. As I indicated in my judgment, the order was made at a hearing which I appointed at a first court date listing on 18 December 2007, where I made my usual orders and explained them to the applicant. The applicant could have been left under no misapprehension as to the possibility that his application might be dismissed at the show cause hearing, if I were not satisfied that the application raised an arguable case for that relief. This is because order 6 contains a clear statement to that effect in capital letters, and it is my invariable practice to have that sentence translated to all applicants appearing in person. I am confident that the present applicant was given a full and ample opportunity at the show-cause hearing to present all his arguments and documents upon which he wished to support the bringing of the application.

3. No appeal was brought from my orders.  However, on 12 March 2008 the applicant filed a ‘notice of motion’ in this court seeking an order that my orders made on 26 February 2008 be vacated.  The notice of motion is supported by an affidavit, in which the applicant suggests that he was under a misapprehension as to the show cause hearing, and complains that he had not received advice from a lawyer appointed under the free legal advice scheme.  That motion is before me today. 

4. At the start of today's hearing, the applicant filed a second affidavit attaching a copy of a letter dated 7 February 2008, which was sent to the applicant by Mr Nair, the barrister appointed under the free advice scheme.  The letter confirms a notification from Mr Nair which is on the court's file, which shows that, in fact, Mr Nair gave the applicant advice on 7 February 2008, well in advance of the show cause hearing. 

5. The applicant now presents his present motion on the basis that he disagrees with Mr Nair's advice.  He now wishes to rely upon a proposed amended application, which was not presented at the show-cause hearing.  I have received it as an exhibit in today's proceeding.  It proposes four grounds. 

6. The first ground contends that the Tribunal failed to consider that the applicant claimed to fear persecution on the ground of his political opinion.  However, there is no substance to that contention.  The Tribunal's reasons plainly show that it was aware that the applicant presented his refugee claims on the basis that he feared persecution on the ground of his political opinions and associations. 

7. The second ground in the proposed amended application is that the Tribunal failed to address a claim based on the applicant’s membership of a particular social group of ‘businessman persecuted by criminal groups’.  However, in my opinion, the applicant did not present such a claim to the Tribunal, and I do not consider that the contrary is reasonably arguable. 

8. The third proposed ground in the amended application is that “the Tribunal made findings in the complete absence of evidence”.  No details of an argument in support of that contention are provided and, in my opinion, it has no arguable substance. 

9. The fourth ground in the proposed amended application contends that the Tribunal failed to apply principles concerning internal relocation according to law.  However, as I indicated in my previous judgment, the Tribunal's reasons appeared to apply principles approved by the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40. I remain of the opinion that there is no arguable error raised in relation to that part of the Tribunal's reasoning.

10. In all of the above circumstances, I am not persuaded that the applicant has presented proper grounds for vacating my previous order.  Nor do I consider that his proposed amended application should cause me to doubt my previous opinion that his substantive application is not supported by arguable grounds for the relief claimed. 

11. I therefore refuse the present application.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  7 April 2008