SZCQC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1733

FEDERAL COURT OF AUSTRALIA

SZCQC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1733 SZCQC AND SZCQD v Minister for Immigration and Multicultural and Indigenous Affairs N 1738 of 2004 JACOBSON J 22 DECEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1738 of 2004

BETWEEN: SZCQC

FIRST APPLICANT

SZCQD

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 22 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused.

2. The applicants to pay the costs of the application.

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 1738 of 2004

BETWEEN: SZCQC

FIRST APPLICANT

SZCQD

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 22 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1. The applicants have applied for an extension of time in which to make an application for leave to appeal against the orders of Federal Magistrate Nicholls dated 5 November 2004. On that date the learned magistrate dismissed an application for review of a decision of the Refugee Review Tribunal ("the RRT") pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules. 2. Although the applicants have sought an extension of time, in my view an extension is not required because the application was made within the time provided by the Federal Court rules. In SZCET v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1516 at [5], Stone J referred to the distinction between Order 52 rule 10(2)(b) and Order 52 rule 5 of the Federal Court Rules. 3. The application in the present proceedings was filed on 23 November 2004 which was within the 21 days provided by Order 52 rule 5, which is the applicable rule. However, I note that leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") because the orders and judgment of Federal Magistrate Nicholls are interlocutory. 4. I will set out briefly the background in this matter including reference to the reasons of the RRT and the Federal Magistrate before turning to the application in the present case. I do so because the application for leave to appeal is before me today. 5. The applicants are husband and wife and are citizens of India. The wife's claims are dependant on her husband's and I shall refer to him as the applicant. The applicant and his wife arrived in Australia on 16 June 2003 and lodged an application for a protection visa on 7 July 2003. On 29 July 2003, a delegate of the Minister refused to grant the applicant a protection visa. The applicant within time applied to the RRT for a review of the merits of the application. 6. On 11 December 2003, the RRT affirmed the decision not to grant a protection visa. The RRT observed that it wrote to the applicants on 26 November 2003 to inform them that on the basis of the information before it the RRT was unable to make a decision in their favour and inviting the applicants to attend a hearing on 18 December 2003 to give evidence and present arguments in support of their claims. 7. The applicants advised the RRT in writing that they did not wish to attend the hearing and that they consented to the RRT proceeding to determine their application. The RRT therefore determined the application "on the papers". The RRT noted the claims of the applicant and his wife that they fled India due to "consistent fear" of being persecuted because of having different political opinions and following the Hindu religion. 8. The applicant stated that his involvement in politics whilst at university caused him to be targeted in 1997, "beaten up" and hospitalised for two weeks. He also claimed that his involvement in providing services to victims of Hindu-Muslim riots in Gurajat in 2002 led to extremists making an attack on his life and firing a shot at him. The applicant claimed that if he returns to India he will be killed, that he and his family are on a hit list, and that there is no where in the country where they can move to for there are extremists everywhere and the authorities are powerless to protect them. 9. The RRT observed that the applicant's claims amounted to a series of assertions. With almost no detail, without any supporting evidence and despite being put on notice that it was unable to make a favourable decision, the applicant declined the opportunity to give evidence before the RRT. The RRT noted that the applicant's claims were consistent in general terms with the independent information about Hindu-Muslim violence in Gurajat. However, the RRT found that the applicant had provided very little information about his claims and that they raise a number of questions and contain a number of apparent discrepancies. In particular, the applicant gave no information of the nature and extent of his involvement in politics nor why he came to be targeted. 10. The RRT had doubts about the truthfulness of the applicant's claims finding them to be inconsistent. Therefore the RRT was not satisfied on the evidence that the applicant had a well founded fear of persecution within the meaning of the Convention. 11. On 5 February 2004, the applicant filed an application for judicial review in the Federal Magistrates Court. On 11 June 2004, the applicant signed consent orders providing that the applicants file and serve an amended application giving complete particulars of each ground of review being relied upon by 10 September 2004. No such amended application was filed. 12. On 5 November 2004, the matter came before Federal Magistrate Nicholls. The applicant sought to hand up a document titled "amended application" but the learned magistrate considered that this document did not comply with the direction that was made on 11 June 2004. His Honour dismissed the application pursuant to Order 13.03(2)(b) of the Federal Magistrates Court Rules for failure to comply with an order of the court. There are no written reasons for the Federal Magistrate's decision but the order, which was made states that the application was dismissed pursuant to the rule to which I have referred. 13. In the present application, the applicant relies upon an affidavit sworn on 24 November 2004. The affidavit states that the Federal Magistrate did not consider the applicant's grounds of appeals and that the applicant would "submit more later". The applicant also filed a draft notice of appeal, which states grounds of appeal in very general terms, including a ground that:- "his Honors [sic] judgment delivered on 5 November 2004 failed to find error of law, jurisdictional error, procedural fairness and relief under Section 39B of the Judiciary Act." 14. The draft notice then indicates that the applicant seeks to rely on principles laid down in Muin v Refugee Review Tribunal [2002] HCA 30 ("Muin ") and a number of other recent authorities. The draft notice also states "the judge erred in considering the real state of affairs of my persecution in my previous country of residence India, I feared harm. And also the present ruling government fail to protect politicians life, which is a worldwide concern today. Honorable trial judge did not take into consideration." 15. Leave to appeal is required, as I said, under section 24(1A) of the Federal Court of Australia Act because the orders of the Federal Magistrate are interlocutory. As was submitted by Mr Marcus for the respondent, the orders which were made by the Federal Magistrate are matters of practice and procedure. An appellate court will only interfere with such a judgment in very limited circumstances; see Decor Corporation Pty Limited v Dart Industries (1991) 3 FCR 397. 16. When the matter was called on for hearing today, the applicant sought an adjournment to seek legal advice and assistance. I rejected the application for an adjournment. It seemed to me that in the light of the history of the matter, having regard, in particular, to the fact that the applicants stated that they did not wish to attend the hearing, notwithstanding the fact they were told that the RRT was unable to make a decision in their favour on the information before it, legal advice would not have been any assistance to them. 17. The decision of the Federal Magistrate is, as I have said, a decision on a question of practice and procedure and it is plain that there is nothing in the approach, which is reflected in his Honour's orders, which could possibly ground any claim which would have any prospects of success on appeal. 18. Although the draft notice of appeal refers, amongst other things, as I have said, to the decision of the High Court in Muin, there is nothing whatsoever in the evidence to suggest that any of the facts necessary to make out a claim that the applicant was misled could be established; see NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2002)124 FCR 465 at [25] and [28]. 19. It follows from what I have said that the decision of the Federal Magistrate was not attended by sufficient doubt for the matter to warrant consideration by a Full Court on an appeal. There is no injustice in the refusal of leave to appeal because the decision of the RRT does not disclose jurisdictional error. It follows that the orders which I made earlier today were that the application for leave to appeal be dismissed with costs. I certify that the preceding 19 (nineteen) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.