SZCIX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1399 (7 September 2004)

Last Updated: 30 November 2004

FEDERAL COURT OF AUSTRALIA

SZCIX v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1399

SZCIX & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N997 OF 2004





EMMETT J
7 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N997 OF 2004

BETWEEN:	SZCIX FIRST APPLICANT SZCIY SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	7 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal be refused from the orders of Federal Magistrate Raphael made on 4 June 2004.
2. The notice of appeal be dismissed as incompetent.
3. The applicants pay the Minister’s costs of the application for leave and of the appeal in the sum of $3000.

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	N997 OF 2004

BETWEEN:	SZCIX FIRST APPLICANT SZCIY SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	7 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicants are husband and wife. They claim to be citizens of India. They arrived in Australia on 26 October 2002, and on 2 December 2002 they lodged applications for Protection Class XA Visas under the Migration Act 1958 (Cth) (‘the Act’).

2 On 10 March 2003, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant protection visas and on 4 April 2003 the applicants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 13 November 2003, the Tribunal affirmed the decision not to grant protection visas.

3 On 21 December 2003, the applicants filed an application to the Federal Magistrates Court of Australia seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Tribunal. On 4 June 2004, for reasons published on that day, Federal Magistrate Raphael ordered that the substantive application be dismissed and that the applicants pay the Minister’s costs assessed in the sum of $1200.

4 The application was dismissed by his Honour pursuant to a notice of motion seeking orders that the application be dismissed on the grounds that it failed to disclose a reasonable cause of action. His Honour considered the grounds specified in the application to the Federal Magistrates Court filed by the applicants. His Honour concluded that in the absence of any particulars whatsoever concerning the claims made, the application disclosed no cause of action and accordingly dismissed the proceeding summarily.

5 On 25 June 2004, the applicants’ filed a notice of appeal in this Court purporting to appeal from the whole of the judgment of Federal Magistrate Raphael. The grounds stated in the notice of appeal were as follows:

‘The Federal Magistrates Court, in his [H]onour’s judgment delivered on the 4 June 2004 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903... I will file more grounds later.’

6 The Chief Justice has directed that the matter be dealt with by a single Judge. When the matter came before me for directions on 23 July, I ordered that the purported notice of appeal be treated as an application for leave to appeal. I directed the applicants to file, no later than 27 August 2004, an amended application for leave to appeal together with an affidavit identifying the grounds upon which any leave to appeal should be granted and a draft notice of appeal clearly identifying the grounds of jurisdictional error relied upon and confirming particulars of evidence and every ground of review relied upon. I listed the matter for hearing today.

7 When the matter was called on today there was no appearance for the applicants. The Minister therefore asked the Court to dismiss the application for leave to appeal, having filed on 6 July 2004 a notice of objection to competency of the appeal.

8 The Tribunal, in its reasons, recorded that on 25 September 2003, it wrote to the husband applicant advising that it had considered all the papers relating to his application but was unable to make a favourable decision on that information alone. The Tribunal, therefore, invited the applicants to give oral evidence and present arguments at a hearing on 8 December 2003. However, on 13 October 2003, the applicant advised the Tribunal in writing that he did not wish to give oral evidence and would like the Tribunal to proceed to make a decision on the papers.

9 The Tribunal recorded that it had a number of issues upon which it required a good deal more detailed evidence before it could be satisfied that the husband applicant has a genuine fear of persecution or that there was a real chance that he will be persecuted on his return to India. On the very limited, vague and unreliable material before it, the Tribunal could not be satisfied about the husband applicant’s claim that he was associated with the BJP. Nor could the Tribunal be satisfied on the basis of the limited information before it that the husband applicant faced harm by reason of his political opinion and that that harm could be characterised as persecution in the terms of the Act.

10 No possible justification for the grant of leave to appeal from the decision of the Federal Magistrate has been put forward. In the circumstances, I consider that it is appropriate to accede to the Minister’s application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 30 November 2004

No appearance by the Applicant :
Counsel for the Respondent:	Ms K Morgan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 September 2004
Date of Judgment:	7 September 2004