SZDKF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 83 (14 February 2005)

SZDKF v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 83

SZDKF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1733 OF 2004

STONE J
14 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1733 OF 2004

BETWEEN:	SZDKF FIRST APPLICANT SZDKG SECOND APPLICANT SZDKH THIRD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	14 FEBRUARY 2005
WHERE MADE:	SYDNEY

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	N 1733 OF 2004

BETWEEN:	SZDKF FIRST APPLICANT SZDKG SECOND APPLICANT SZDKH THIRD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	14 FEBRUARY 2005
PLACE:	SYDNEY

1 This is an application for leave to appeal from the decision of a Federal Magistrate handed down on 2 November 2004. The application is brought by a husband and wife and their child. The claims for refugee protection are those of the husband and, like the Refugee Review Tribunal (‘Tribunal’) and the Federal Magistrate, I shall refer to him as ‘the applicant’.

2 When the application was called for hearing this morning the applicant did not appear. He was called outside the Court with no response. This is a matter of concern because initially the hearing was scheduled for 16 February 2005 but had to be rescheduled to today. I am satisfied, however, that the applicant has been adequately notified. He was initially advised of the change by letter dated 18 January 2005 sent from the Court to his address on the Court file. This was reconfirmed by a letter sent by registered post on 3 February 2003 both to his residential address and to his post office box. I am also informed from the bar table that the respondent’s solicitors sent him a copy of the respondent’s submissions by express post on 10 February 2005. There has been no response to any of these letters. I note, however, that the applicant was ordered to provide written submissions in support of his application seven business days before the hearing. Even if the applicant was still under the impression that the hearing was to be on 16 February, his submissions should have been received by Monday 7 February 2005. The absence of any submissions and the procedural history described below is consistent with the view that the applicant did not intend to press his application with any seriousness. The respondent has provided written submissions that I have considered along with the decision of the Federal Magistrate and the Tribunal. In the circumstances I am satisfied that it would be appropriate to deal with the substance of the application rather than to dismiss the proceeding under O 32r 2(1)(c) for non-appearance by the applicant.

3 The applicant is a Sikh man born in the Punjab, India. He applied for a protection visa on 14 November 2001. The application relied generally on the alleged treatment of Sikhs in India as causing him to leave the country rather than any personal history of persecution. The applicant was invited to attend an interview with the delegate, but he did not attend. On 30 January 2002, a delegate of the Minister dismissed the application.

4 The applicant lodged an application for review of the delegate’s decision on 27 February 2002. The Tribunal held a hearing on 3 March 2003 during which the applicant gave evidence. At the hearing the applicant made claims that he had been personally persecuted including, among other things, that he had been forced into hiding for six or seven years. The Tribunal accepted that the applicant may have been subjected to harassment but did not accept that the Indian authorities sustained a belief that he was associated with Sikh militants. The Tribunal also found that the applicant’s claim to have been in hiding for a lengthy period was inconsistent with his claim to have been subjected to harassment. The Tribunal found that the applicant may have been the victim of extortion by the police for the purpose of extracting money rather than for reasons associated with his being a Sikh. On 4 April 2003 the Tribunal handed down its decision in which it held that it was not satisfied that the applicant faced a real chance of persecution for a Convention reason if he were to return to India and therefore his fear was not well-founded.

5 The applicant first sought judicial review of the Tribunal’s decision by lodging an application in the Federal Court in its South Australian registry on 30 April 2003. According to the Federal Magistrate that application contained an entirely unparticularised list of almost all the heads of judicial review. Mansfield J directed the applicant to provide particulars of the grounds of his application. It would appear that the applicant did not comply with those directions and on 10 October 2003, the applicant’s then-solicitor appeared and consented to the dismissal of the proceedings for non-compliance with his Honour’s order.

6 The applicant commenced proceedings in the Federal Magistrates Court on 27 April 2004. The Federal Magistrate dismissed the applicant’s application as incompetent as the decision of the Tribunal was a privative clause decision for which relief is barred under s 474(1) of the Migration Act 1958 (Cth) (‘the Act’). His Honour also held that the application was out of time under s 477(1A) of the Act. While the Federal Magistrate noted the procedural history of the case set out at paragraph [5] above, his Honour considered all five grounds of review identified in the application and held that all failed.

7 The applicant filed a notice of appeal in this Court on 23 November 2004. On 2 December 2004 I ordered that the purported notice of appeal be treated as an application for leave to appeal as the decision of the Federal Magistrate was an interlocutory judgment. I also ordered that the applicant file written submissions seven working days prior to the hearing of the application. The applicant has not complied with this order.

8 The applicant’s sole ground of appeal is that the Federal Magistrate erred in not holding that the Tribunal was in breach of the requirements of procedural fairness and s 424A of the Act as the Tribunal did not raise with the applicant, nor give him an opportunity to comment on, the independent information to which the Tribunal referred in the following comment:

9 As his Honour pointed out the applicant’s claim ignores the exception in s 424A(3) which states:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

10 Section 424A(1) of the Act is expressly stated to be subject to s 424A(3)(a). The ‘independent information’ to which the Tribunal referred to in the passage quoted at paragraph [8] above clearly falls within the exception in s 424A(3)(a) of the Act. The general country information relied on by the Tribunal was not specifically about the applicant. The information related to the treatment of the Sikh people of India as a whole. The fact that the applicant is a member of that class of persons does not mean that the Tribunal was obliged to provide to the applicant the particulars of this information; see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 per Beaumont J at [68] – [71] and per Merkel and Hely JJ at [138] – [139].

11 For leave to appeal to be granted there must be sufficient doubt as to the correctness of the judgment below to warrant review by a Full Court. In addition, the applicant must show that, even if the judgment below is assumed to be wrong, the applicant would suffer substantial injustice if leave to appeal was refused. See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 and Ogawa v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 315.

12 While it can be assumed that the second requirement would be satisfied in the circumstances of this case, I am not satisfied that there is sufficient doubt as to the correctness of the decision of the Federal Magistrate. Indeed I am of the opinion that his Honour was correct and am unable to identify any basis on which the applicant, had he appeared, could have persuaded me that an appeal had any real chance of succeeding. For these reasons the application for leave to appeal must be dismissed with costs. As the respondent has reminded the Court that the third applicant is a minor I propose to accept the respondent’s submission that the costs order should be made against the first and second applicants only. I propose to order costs fixed in the amount of $1,700.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Counsel for the Applicants:	No appearance for the Applicants

Counsel for the Respondent:	Mr R White

Solicitors for the Respondent:	Sparke Helmore

Date of Hearing:	14 February 2005

Date of Judgment:	14 February 2005

(b)	that the applicant gave for the purpose of the application; or
(c)	that is non-disclosable information.’

1.	The application for leave to appeal be dismissed.
2.	The first and second applicants pay the respondent’s costs in the amount of $1,700.

Federal Court of Australia

SZDKF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 83 (14 February 2005)