SPWB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 69 (10 February 2004)

SPWB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 69

SPWB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 549 OF 2003

SELWAY J
10 FEBRUARY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 549 OF 2003

BETWEEN:	SPWB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	10 FEBRUARY 2004
WHERE MADE:	ADELAIDE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 549 OF 2003

BETWEEN:	SPWB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	10 FEBRUARY 2004
PLACE:	ADELAIDE

1 On 7 October 2003, Mansfield J made various orders in these proceedings requiring various steps to be taken by 4 November 2003. Those steps included the filing and serving of an amended application, of further affidavit material and of an outline of submissions. Those orders were not complied with until 2 and 5 December 2003. The applicant seeks an order extending the time for complying with the orders of Mansfield J until 5 December 2003. The respondent (‘the Minister’) opposes that order and instead argues that the proceedings should be struck out for failure to comply with those orders. Both parties accept that it is relevant to a consideration of those issues whether the applicant has some prospects of success in the proceedings. For the reasons given below I am of the view that she does not have any such prospects. It is appropriate in the circumstances to refuse the applicant’s request to extend the time for compliance with the orders and to strike out the proceedings by reason of the non-compliance with them.

2 On 10 June 2003, the applicant instituted proceedings in this Court seeking orders of mandamus, certiorari and an injunction in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 26 June 2002. The Tribunal had confirmed the previous decision of the Minister’s delegate not to grant the applicant a protection visa. The application filed by the applicant did not provide any particulars of the basis for the claimed relief. In particular it did not relate any of the jurisdictional errors alleged to have been made by the Tribunal to the actual conduct, reasons or decision of the Tribunal. The orders made by Mansfield J on 7 October 2003, were designed and intended to bring the proceedings into conformity with the Rules of Court by requiring the applicant to specify and particularise her claim. In the circumstances the failure to comply with that order cannot be treated as merely some technical or formal oversight.

3 Nevertheless, the relevant specifications and particulars have now been provided. If they had revealed that the applicant had some prospects of success in these proceedings then I would be disposed to extend the time for compliance with the orders of Mansfield J and deal with any prejudice to the respondent by an appropriate order for costs. However, there is no point in extending the time for compliance with those orders if the specifications and particulars now provided merely reveal that the applicant does not have a case and that the continuation of these proceedings would be futile and pointless. The parties were correct in their agreement and acceptance that the question of whether an extension of time should be given depended upon the applicant establishing that she had at least some prospects of success in the proceedings.

4 The applicant is an Indian citizen of Sikh ethnicity and religion. Her case for a protection visa was that she was persecuted by the Indian authorities because her husband was involved in a Sikh political movement and because she had fed militant Sikhs. She said that she had been harassed by the police and that she had been beaten by them twice. She said that her children had suffered similar persecution. None of her family were currently in India and if she returned she would be alone and would suffer arrest, interrogation, bodily harm and death. The Tribunal found that the applicant (and other family members) had voluntarily visited India since they first left. As the Tribunal noted this behaviour was not consistent with a fear of persecution. The Tribunal did not believe the applicant’s evidence, or that of her husband, that the applicant’s husband had the adverse profile with the police that he claimed. The Tribunal noted that at the relevant time her husband was himself a police officer and that he was promoted after the time that he says he came to the adverse notice of the police authorities. The Tribunal also did not believe the applicant or her husband that they fed militants. The Tribunal did not believe the applicant in relation to her claims of persecution and mistreatment. Finally, the Tribunal found that there was no reason why the applicant could not reside in other areas of India other than the Punjab, noting that she had not personally lived in the Punjab for 16 years. The Tribunal concluded that the applicant ‘does not face a real chance of persecution for any Convention reason actual or imputed now or in the reasonably foreseeable future if she were to return to India’.

5 In the amended application filed on 2 December 2003, the applicant argues that the Tribunal failed to take into account a relevant consideration. It is not clear in what manner it is alleged that the Tribunal failed to do so. However, in the applicant’s oral and written submissions the argument seems to be put that the Tribunal failed to take into account a relevant consideration because it did not accept the applicant’s case. The applicant refers to three aspects of the evidence given by the applicant (and referred to in the reasons) which the Tribunal did not accept. The implication within the submission seems to be that if that evidence had really been taken into account by the Tribunal then the Tribunal must necessarily have come to a different conclusion. Such an argument is plainly erroneous. There is no reason to doubt that the Tribunal did exactly what it said it did - it took ‘all the applicant’s claims into account and consider[ed] all of the circumstances of this case, including cumulatively’. Having done so it disbelieved the applicant. The applicant’s real complaint is that the Tribunal should have found that the applicant’s claims were credible. That was plainly an issue within the jurisdiction of the Tribunal. It was for the Tribunal to determine the merit of the application.

6 The particulars that have now been provided in the amended application make it clear that the applicant does not have any prospect of success in these proceedings. The continuation of these proceedings is futile. In these circumstances there is no reason why the orders of Mansfield J should be varied to extend the time for compliance with them.

7 In the absence of such an extension of time the breaches of those orders remain. Again if the applicant had a reasonable prospect of success in the proceedings I would not be disposed to strike the proceedings out on that basis. However, where there is no such prospect then I can see no reason not to exercise the powers under O 10 r 7 of the Federal Court Rules. The proceedings should be dismissed.

8 The applicant should pay the respondent’s costs of the proceedings save for the costs incurred in respect of the notice of objection to competency filed in the Court on 1 December 2003. That notice raised no new issues and was unnecessary. I can see no reason why the applicant should pay the costs related to it.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Counsel for the Applicant:	MW Clisby

Solicitor for the Applicant:	MW Clisby

Counsel for the Respondent:	JA Telfer

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	20 January 2004

Date of Judgment:	10 February 2004

Federal Court of Australia

SPWB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 69 (10 February 2004)