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Federal Court of Australia |
Last Updated: 3 March 2005
FEDERAL COURT OF AUSTRALIA
SZDEM v Minister for Immigration &
Multicultural & Indigenous Affairs
[2005] FCA 167
SZDEM
& ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
N 31 OF 2005
STONE J
3 MARCH
2005
SYDNEY
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
OF AUSTRALIA
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BETWEEN:
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SZDEM
FIRST APPLICANT SZDEN SECOND APPLICANT SZDEO THIRD APPLICANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The application be dismissed.
2. The first and second applicants pay the respondent’s costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF
AUSTRALIA
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AND:
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REASONS FOR JUDGMENT
1 This is an application for an extension of time within which to make an application for leave to appeal from the orders of a Federal Magistrate made on 13 December 2004. On that date, the Federal Magistrate dismissed the application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’).
2 The applicants are a married couple and their daughter. They are citizens of India and arrived in Australia on 14 July 2003. On 12 August 2003 the applicants lodged an application for protection (class XA) visas. On 26 August 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the visas and on 22 September 2003 the applicants applied to the Tribunal for review of that decision.
3 The claims for refugee protection are those of the applicant husband and, like the Tribunal, I shall refer to him as ‘the applicant’. The applicant is a Hindu man from the Jalandhar area in Punjab. Relevantly, the applicant claimed that terrorists approached him to record and distribute their lectures and speeches through his audio cassette business. When he refused, the terrorists were alleged to have made threats against the applicant, killed his daughter, kidnapped his father and attacked the applicant. The applicant made further claims in relation to his father, however, the Tribunal did not consider these claims as they concerned his father’s experience more than two decades ago but concentrated on the applicant’s most recent claims.
4 The Tribunal was not satisfied that the applicant’s claims were true. The Tribunal accepted independent country information that militancy in Punjab had effectively ended some years ago. The Tribunal found that the applicant’s claims were not credible and gave detailed reasons for that view. In particular, the Tribunal found it incongruous that, on the applicant’s claims, terrorists threatened and harassed the applicant for some time, yet did not act on these threats, and then decided suddenly to begin to attack the applicant and his family some time later. The Tribunal also noted that the applicant was unable to remember the date of his daughter’s death. He claimed that it occurred in December 2000 (but was unable to remember the exact date) whereas a letter from the treating doctor that he supplied put the death as occurring in January of that year. In addition, the Tribunal found the applicant’s claims implausible in part because he did not close and sell his audio cassette business before he left India.
5 The Tribunal held that even if the applicant’s claims were true, the Tribunal was not satisfied that the applicant had been targeted for a Convention reason. The Tribunal found the harm that the applicant alleged he and his family had suffered could be attributed to the applicant’s refusal to record the terrorists’ speeches and lectures rather than because the terrorists imputed a political opinion to him or because of his religion.
6 The Tribunal also found that based on independent country information, adequate State protection was available in India. The applicant could, given the large population of the country and the very small number of terrorists remaining, also relocate within the Punjab or India.
7 The applicant’s application for review of the Tribunal’s decision under s 39B of the Judiciary Act 1903 (Cth), filed in the Federal Magistrates Court on 2 April 2004, contained a number of unparticularised grounds of review. On 8 June 2004, the applicant attended a directions hearing before a Registrar at which orders were made, by consent, including that the applicants, on or before 20 July 2004, file and serve an amended application setting out in full the grounds of the application together with any affidavit material to be relied upon. The Registrar also ordered that if an amended application was not filed in compliance with these orders, the respondent could request that the Registry list this matter in the non-compliance list before a Federal Magistrate with the intention of applying for summary dismissal. The applicant failed to comply with this order and the matter was listed in the non-compliance list for 5 November 2004.
8 The applicant was represented by counsel on 5 November 2004 at the directions hearing before Raphael FM. The applicant filed on that date an amended application for judicial review, however, the Federal Magistrate ordered that he file a further amended application on or before 19 November 2004. It would appear this order was made because the amended application filed on 5 November 2004 again failed to adequately particularise any jurisdictional error in the Tribunal’s decision. The Federal Magistrate also ordered that if no further application was filed on or before 19 November 2004, the respondent could apply for an order in Chambers dismissing the application for non-compliance with the Court’s orders without further reference to the applicant.
9 On 1 December 2004, the respondent sought dismissal of the proceedings pursuant to the above order. On 13 December 2004, Raphael FM made orders dismissing the application pursuant to Part 13, Rule 13.03(2)(a) of the Federal Magistrates Court Rules. It would appear that a typographical error was made and on 12 January 2005 this order was substituted with an order that the application be dismissed pursuant to Part 13, Rule 13.03(2)(b) of the Federal Magistrates Court Rules.
10 Accompanying the application for leave to appeal filed in this Court on 10 January 2005 is an affidavit sworn by the applicant on 3 January 2005 in which the applicant seeks to explain the reasons for the delay in filing an amended application for judicial review in the Federal Magistrates Court. The applicant claims the failure to comply with the orders of 8 June 2004 was a result of a late appointment with his legal advisor from the Legal Advice scheme and his wife’s pregnancy. The applicant further claims that the failure to comply with the orders of 5 November 2004 was due to his attempts to obtain more documents from overseas which might assist his application. The applicant asserts that two weeks is a short period of time considering the documents had to come from overseas. Even if this evidence could have been considered by Raphael FM and I were to accept the reasons for delay as valid and legitimate, the application for an extension of time within which to appeal must still be refused if the appeal would have no or only very slight prospects of success: see Gallo v Dawson (No 2) [1992] HCA 44; (1992) 109 ALR 319; Deighton v Telstra Corp (unreported, Lee, Heerey and Nicholson JJ, 17 October 1997); Kalaba v The Queen (unreported, Finn J, 13 September 1996); and Engler v Commissioner of Taxation [2002] FCA 620 per Nicholson J at [12].
11 The applicant filed written submissions 24 January 2005 in support of his application for an extension of time. These submissions, and those made at the hearing by the applicant, in the main referred to errors of fact that the Tribunal is said to have made intermingled with diffuse allegations of bias. Clearly mere errors of fact do not constitute jurisdictional error and neither this Court nor the Federal Magistrates Court has jurisdiction to set aside a decision of the Tribunal for this reason. The applicant’s allegations of bias appear to stem from an error that the Tribunal made in describing the child that died as ‘illegitimate’. The applicant was obviously outraged by this description, which, to him, had pejorative implications that it would not have in this society. The error apparently stemmed from a short affidavit by the applicant’s father in which the father states:
‘That [the applicant] is my son and was married to [S]. Out of their wed-lock a female child namely [C] was born.’
12 I would understand the phrase, ‘out of their wed-lock’ to mean ‘from’ their wedlock. However the Tribunal apparently read it as meaning ‘out of wedlock’, that is ‘illegitimate’. Unfortunately, the applicant, having attached a pejorative implication to the word, has assumed that this has contributed to the Tribunal disbelieving his claims. There is no evidence in the Tribunal’s reasons that the Tribunal has regarded the supposed illegitimacy as having any implication for the applicant’s credibility and I can find no evidence of bias in the reasons. It is regrettable that the applicant has been distressed by value judgments that may or may not be made in his country but are unlikely to be made in this country. I have reviewed the Tribunal’s reasons carefully and can find no evidence of bias or, indeed, of any jurisdictional error.
13 For these reasons I find that an appeal from the Federal Magistrate’s decision would have virtually no chance of succeeding and therefore it would be futile to grant an extension of time or grant leave to appeal.
14 I must therefore dismiss the application. I further order that the first and second applicants pay the respondent’s costs.
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I certify that the preceding fourteen (14) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Stone.
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Associate:
Dated: 3 March 2005
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Counsel for the Applicants:
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The first applicant appeared on behalf of the applicants
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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2 March 2005
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Date of Judgment:
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3 March 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/167.html