SZROH v Minister for Immigration and Citizenship
[2012] FCA 1372
•23 November 2012
FEDERAL COURT OF AUSTRALIA
SZROH v Minister for Immigration and Citizenship [2012] FCA 1372
Citation: SZROH v Minister for Immigration and Citizenship [2012] FCA 1372 Parties: SZROH and SZROI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1462 of 2012 Judge: SIOPIS J Date of judgment: 23 November 2012 Date of hearing: 23 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the First and Second Applicants: The First Applicant appeared in person.
Counsel for the First Respondent: Ms R Jones
Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1462 of 2012
BETWEEN: SZROH
First ApplicantSZROI
Second ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
23 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants are to pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1462 of 2012
BETWEEN: SZROH
First ApplicantSZROI
Second ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
23 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to extend the time within which to make an application for leave to appeal and an application for leave to appeal against the decision of a Federal Magistrate, which was delivered on 4 September 2012.
The decision of the Federal Magistrate dismissed the applicants’ application for a review of the decision of the Refugee Review Tribunal (the Tribunal) under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Rules). The Federal Magistrate’s decision was, therefore, an interlocutory decision, and an application for leave to appeal was required to be made within 14 days. No such application was lodged by the applicants within the time limit.
This application for an extension of time and for leave to appeal was made on 26 September 2012.
The applicants, who are husband and wife, arrived in Australia on tourist visas and then applied for protection visas. The wife’s application is dependant upon the application of her husband, the first applicant. In support of the application for a protection visa, the first applicant provided the Department of Immigration and Citizenship (the department) with a written statement in which the first applicant stated that he feared persecution on the basis that members of the BJP political party had threatened him after he rejected a proposal they put to him for the development of his property in India. He also said in this document that in 2005 he had been accused of being a terrorist by Hindu farmers because of his previous involvement with the Congress Party. The application for the protection visas was rejected by a delegate of the Minister.
After the applicants sought review of the delegate’s decision, they were invited to appear at a hearing of the Tribunal. At the hearing of the Tribunal, the first applicant told the Tribunal that he had come to Australia to work and did not fear any harm on his return to India. The first applicant went on to say that he did not know what was written in his application to the department for a protection visa and that he did not complete that document himself.
The Tribunal dismissed the first applicant’s application on the basis that he had withdrawn his claim to fear persecution.
The applicants applied to the Federal Magistrates Court for a review of the Tribunal’s decision and relied upon three grounds. One of them was that there had been a failure by the Tribunal to comply with s 424A of the Migration Act 1958 (Cth). The Federal Magistrate said that s 424A was not invoked because the information which the Tribunal relied upon had been provided by the first applicant himself. As to the other two grounds, the Federal Magistrate said that they had not been particularised and the first applicant had said that he had nothing to say in support of them. The Federal Magistrate dismissed the application under r 44.12(1)(a) of the Rules on the basis that the application for review did not disclose an arguable case.
Before this Court, the applicants have foreshadowed, as proposed grounds of appeal, two grounds which have a familiar ring – having been relied on by appellants in several other appeals to this Court from the Federal Magistrates Court.
The first proposed ground is that the Federal Magistrate failed to consider that the Tribunal acted in a manifestly unreasonable way. The second proposed ground is that the Tribunal had no jurisdiction to make the decision that it did because its satisfaction was not arrived at in accordance with the requirements of the Migration Act.
These proposed grounds of appeal do not address the grounds of review which were before the Federal Magistrate. Further, the first applicant, who appeared today, made no submissions in support of the proposed grounds or the application generally.
In my view, for the reasons he gave, the Federal Magistrate did not err in dismissing the grounds of review which were relied on before him.
I would not give leave to the applicants to raise these two new grounds of review as grounds of appeal which are identified in this application, because the grounds are hopeless and have no prospects of success.
This application, in my view, amounts to an abuse of the process of the Court. This is because the first applicant admitted before the Tribunal that he came to Australia for the purpose of working and that he did not fear persecution in India. In those circumstances, for the applicants to persist with their application for protection visas, by seeking to appeal against the decision of the Federal Magistrate affirming the decision of the Tribunal is, in my view, an abuse of process.
Accordingly, because there are absolutely no prospects of success in any appeal against the Federal Magistrate’s decision, I will dismiss the application for an extension of time for leave to appeal and for leave to appeal. I will hear from the first respondent as to the question of costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 3 December 2012
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