SZQUB v Minister for Immigration
[2012] FMCA 74
•8 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQUB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 74 |
| MIGRATION – Application in a case for reinstatement of judicial review application – dismissal for non appearance – consideration of circumstances of the representation of the applicant and whether a serious issue to be tried. |
| Federal Magistrates Court Rules2001 (Cth) |
| First Applicant: | SZQUB |
| Second Applicant: | SZQUC |
| Third Applicant: | SZQUD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2424 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 8 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2012 |
REPRESENTATION
| Solicitors for the Applicants: | Mr M Newman Newman + Associates |
| Solicitors for the Respondents: | Mr I Temby Minter Ellison |
INTERLOCUTORY ORDERS
The application in a case, filed on 19 December 2012, is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in a case, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2424 of 2011
| SZQUB |
First Applicant
| SZQUC |
Second Applicant
| SZQUD |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application in a case filed on 19 December 2011 seeking the vacation of orders made by me on 22 November 2011, dismissing the principal application pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth), with costs.
The reinstatement application is supported by the affidavit of Melvin Newman, solicitor, filed on 19 December 2011. The reinstatement application is opposed by the Minister, who relies upon the affidavit of Kerryn Christine Stint, filed on 2 February 2012. I received both affidavits, and neither deponent was required for cross-examination. I have also had regard to the original judicial review application and supporting affidavit, and the decision of the Refugee Review Tribunal (“the Tribunal”) annexed to the affidavit of Ms Stint.
It appears from the material that at the time these applicants filed their judicial review application on 24 October 2011, they were being assisted by a firm which comprises a migration agent as well as Mr Newman. Mr Newman told me from the bar table that he works in association with the migration agent. The judicial review application gives an address for service of 1510/87-89 Liverpool Street, Sydney, and the affidavit of Ms Stint annexes a letter dated 3 November 2011 to the first applicant at that address for service, reminding her of the directions hearing listed on 22 November 2011 at 9.30am, and warning that in the event of non-appearance the Minister would seek the dismissal of the matter. Mr Newman provides the same address for service.
There was no appearance when the matter was called before me for directions on 22 November 2011 and, in the light of the circumstances as appeared at that time, I made the dismissal order with costs.
I accept from Mr Newman’s affidavit that he was not personally at fault and that the judicial review application had not been brought to his attention. It seems to me likely in the circumstances that there was a responsibility on the part of the migration agent with whom Mr Newman works to attend to his client’s interests, and that the migration agent overlooked that responsibility. In any event, it does not appear that the applicants were personally at fault in failing to attend court, given that they appear to have put their affairs in the care of others.
While the circumstances of the non-appearance by or on behalf of the applicants at the time of the directions hearing could have been better explained, I am prepared to accept that a reasonable explanation for the applicants’ non-appearance has been advanced by Mr Newman, who now seeks the reinstatement of the application and would, if that application is reinstated, act on their behalf on the basis of a proposed amended judicial review application.
Amended application
That proposed amended application annexed to Mr Newman’s affidavit asserts that the applicants were physically and mentally abused by the first applicant’s husband, and that the Tribunal accepted the truth of their claims, and that laws designed to stamp out domestic abuse were ineffective. The proposed amended application further asserts that the applicants form part of an unprotected abused social group in a patriarchal society much prevalent amongst the rural peasantry in India, deserving of Australia’s protection. Those assertions no doubt would support the applicants’ claims for protection. However, to the extent that the proposed amended application is an assertion that the Tribunal fell into jurisdictional error in the consideration of the applicants’ claims, I respectfully disagree.
The Tribunal’s decision is expressed at several levels. The primary level is a finding discussed from [48][1] and concluded at [50][2], that the first applicant’s fear of persecution in India at the hands of her husband is not well-founded at the time of the Tribunal’s decision or in the reasonably foreseeable future. The Tribunal reasoned that, on her own evidence, the first applicant had not faced any physical harm at the hands of her husband since 2007, which was about three years before the applicants came to Australia.
[1] Tribunal decision, page 10.
[2] Tribunal decision, page 10.
It was, in my view, open to the Tribunal to find that, notwithstanding that the first applicant had been the victim of domestic violence in the past, there was no serious risk of that harm recurring in the future should the applicants return to India.
The Tribunal also found that effective state protection had been, in the past, provided to the first applicant by the Indian police. Mr Newman drew attention to country information which pointed to serious inadequacies in the protection of women in India who are victims of physical violence.
The finding on state protection was not strictly necessary, but to the extent that it would be an issue on a judicial review application, the Tribunal is, in my view, entitled to have regard to the particular facts of the case before it, which may run counter to the general circumstances appearing from country information.
I also do not accept the proposition that the Tribunal failed to consider the applicant’s claims by reference to the Convention nexus of membership of a particular social group. It was not strictly necessary for the Tribunal to draw any nexus, given its principal finding that the first applicant did not have a well-founded fear of future harm.
However, the Tribunal’s consideration of discrimination against women living without their husbands, at [52]–[55] of its decision[3] establishes, in my view, an implicit line of reasoning that the Convention nexus to the harm alleged by the first applicant must be membership of the particular social group of single women in India.
[3] Tribunal decision, pages 10-11.
In the circumstances, I do not accept that the interests of the administration of justice require the reinstatement of the judicial review application. I will order that the application in a case be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $2,000. The solicitor for the applicants did not wish to be heard on costs. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in a case, fixed in the sum of $2,000.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 14 February 2012
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