SLLB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 70

FEDERAL COURT OF AUSTRALIA

SLLB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 70 SLLB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 486 OF 2003 SELWAY J 13 FEBRUARY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 486 OF 2003

BETWEEN: SLLB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 13 FEBRUARY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The proceedings be dismissed.

2. The applicant to pay the respondent's costs of the proceeding. 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 486 OF 2003

BETWEEN: SLLB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 13 FEBRUARY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 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, further affidavit material and 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 an arguable case for the relief he ultimately seeks. For the reasons given below I am of the view that he does not have such a case. 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 7 May 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 21 March 2003. 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 with 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 his claim. In the circumstances the failure to comply with those orders 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 an arguable case 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 all that is revealed by the specifications and particulars now provided is 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 he had at least an arguable case. 4 The applicant is an Indian citizen of Sikh ethnicity and religion. His case for a protection visa was that he was suspected by the Indian authorities of having been involved in extremist Sikh politics and was consequently persecuted in various ways. He alleged that he had been subjected to imprisonment, beatings, false charges of murder and so on. The Tribunal accepted that the applicant may well have been detained and harassed during the period of Sikh political militancy. It accepted that the applicant had been charged and convicted of murder and that he had been acquitted on appeal. It also accepted that the applicant could be at continuing risk of extortion by the police on his return to India. However, the Tribunal did not accept the applicant's claim that a particular person (Hajara) still wished or intended to kill him nor did it believe the applicant in relation to his claims of persecution since 1994. The Tribunal found that any extortion by the police if he returned would be based upon his perceived wealth, not his 'race, religion, nationality, membership of a particular social group or his political opinion'. The Tribunal concluded that 'there is no credible evidence…which could support a conclusion that there is a real chance that the applicant would be today suspected of involvement with extremists and so at risk of abuse for a Convention reason, that is because he is Sikh or because of an associated imputed political opinion.' 5 In the amended application filed on 2 December 2003, the applicant argues that the Tribunal failed to apply 'the correct test'. 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 applied the wrong test as to what constitutes persecution, and that the Tribunal failed to consider whether the applicant was a member of a particular social group, namely a member of the Sikh community 'with a local history'. Neither of these arguments has anything much to do with what the Tribunal actually did. The Tribunal was not satisfied that the applicant would face persecution on his return because it did not believe the applicant's claims of what persecution he had suffered in the past. The Tribunal accepted that the police in the Punjab (or, at least, some of them) may exceed their authority and act unlawfully. Whether or not this could constitute 'persecution' in circumstances where the courts are independent and have the power to protect the rights of citizens was not a matter that the Tribunal needed to resolve. The Tribunal clearly found that if this unlawful behaviour occurred the reason for it would be the perceived wealth of the applicant and not a Convention reason. 6 However, it was apparent from the oral and written submissions of the applicant that his real complaint was that the findings by the Tribunal were 'against the weight of the evidence'. Particular attention was drawn to a report issued by the United Kingdom's Immigration and Nationality Directorate in October 2001. That Report (which is quoted in the Tribunal's reasons), whilst concluding that Sikh persecution had ended, contained the qualification that there were some people with a local history who continue to be persecuted. Although some attempt was made to present the issue in terms of jurisdictional error, the applicant's real complaint was that the Tribunal should have found that the applicant's claims were credible because they were consistent with this qualification. That was plainly an issue within the jurisdiction of the Tribunal. It was for the Tribunal to determine the merit of the application. 7 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. 8 In the absence of such an extension there remains a breach of those orders. 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 proceeding should be dismissed. 9 The applicant should pay the respondent's costs of the proceedings. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.