SZCAL v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The Applicants identified as SZCAL, SZCAM and SZCAN are husband, wife and child. They are citizens of India who arrived in Australia on 14 November 2002. On 9 December 2002, they lodged an application for Protection (Class XA) visas. 2 On 16 December 2002, a delegate of the Respondent Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the visas. On 31 December 2002 the Applicants lodged an application for review of that decision with the Refugee Review Tribunal ("the RRT"). 3 The RRT constituted by Dr Witton affirmed the decision not to grant protection visas on 16 October 2003. By an amended application filed 24 May 2004 the Applicants sought a review of the RRT's decision in the Federal Magistrates Court of Australia. On 23 December 2004 the Minister filed a motion seeking relief in respect of the amended application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001. Rule 13.10 relevantly provides: "The court may order that a proceeding be ... dismissed generally ... if it appears to the Court that: (a) no reasonable cause of action is disclosed in relation to the proceeding ... ; or (b) the proceeding ... is frivolous or vexatious ..." 4 That motion for summary dismissal came before the Federal Magistrates Court constituted by Federal Magistrate Raphael on 16 May 2005. In relation to that application, the learned Federal Magistrate said in paragraphs 5 and 6 of his reasons for judgment: "5. The applicant filed an amended application on the 24 May 2004. He claims in that document that a jurisdictional error was committed by the Tribunal in not accepting his claims that he had been the subject of persecution in India. The grounds indicated that the Tribunal had erroneously rejected the claims and evidence that he was persecuted on religious grounds and argues that the evidence which the Tribunal accepted about events in India proved that the attacks by Muslims on him and his family were caused by the fact that he was a Hindu. The application also takes issue with the findings of the Tribunal that the applicant was not a politically important figure in the RSS. 6. The matters raised in the amended application do seem to me to be matters in which the applicant disagrees with the findings of fact to which the Tribunal has come. This court is not available to hear disputes as to fact nor is it able to substitute its findings of fact for those of the Tribunal. To this extent the application does not disclose any reasonable cause of action of the type with which this court can deal." 5 The learned Federal Magistrate proceeded to dismiss the amended application and ordered that the Applicants pay the Respondent's costs assessed in the sum of $2500. 6 From the decision of the Federal Magistrate on the motion the Applicants brought an appeal to this court by notice of appeal filed 3 June 2005. It was agreed between the parties that the matter could only come before the court on appeal from the Federal Magistrate with the leave of the court pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) given that the decision of the Federal Magistrate had been an interlocutory judgment. Justice Edmonds therefore dismissed this appeal as being incompetent on 28 June 2005. 7 The Applicants proceeded within an extension of time previously granted by the court to file an application for leave to appeal on 21 July 2005. That application has been brought in the names of SZCAL, SZCAM and SZCAN and identifies the appeal grounds as being those appearing in the annexed affidavit. 8 The Applicants were represented on the hearing of the application for leave to appeal by Mr Silva, solicitor, who filed a notice of appearance on their behalf on 7 August 2005. Mr Silva sought leave to rely upon a draft amended notice of appeal of 7 August 2005 in substitution for the draft notice of appeal which had been attached to the affidavit accompanying the application of 21 July 2005. The respondent Minister did not oppose the granting of such leave and it was duly granted. 9 For a grant of leave to appeal to be made, it is necessary for the Applicants to establish that the decision of the Federal Magistrate on the motion is attended with sufficient doubt to warrant its reconsideration and that substantial justice would result if leave were refused. 10 This matter bears some similarity to Yo Han Chung v The University of Sydney [2002] FCA 186 a decision of Spender J on appeal from a summary dismissal by Federal Magistrate Driver in Chung v University of Sydney [2001] FMCA 94. I particularly draw attention to paragraphs 31 to 34 of those reasons for judgment the principles of which were referred to and applied by both the Federal Magistrate and Spender J. 11 I have had the benefit of written and oral submissions from both parties. In his written submissions Mr Silva states: "The applicants concede that the Grounds advanced in the appeal were not argued before the Federal Magistrate." 12 These grounds that the Applicants seek to advance before me on the leave application are more germane to the hearing of an application for a review of the RRT's decision rather than an application for leave to appeal from a decision of a Federal Magistrate on a motion for dismissal such as was before Federal Magistrate Raphael. In support of his arguments for the applicants, Mr Silva has relied upon evidence in the form of affidavits which was not before the Federal Magistrate and some of which was not before the RRT. 13 In my opinion, no matter has been raised which suggests that the learned Federal Magistrate in this case fell into error in deciding that the amended application raised no matters which would justify a review by the court of the RRT's decision. 14 Mr Silva urges that given the Applicants were self-represented before the Federal Magistrate, he should have independently considered whether there was an arguable case before him. However it does not seem to me that there was any obligation on the Federal Magistrate to consider whether there might be an arguable case on the hearing of the amended application for review of the RRT's decision. 15 What Federal Magistrate Raphael was required to consider was whether or not the amended application raised any reasonable cause of action warranting consideration of the RRT's decision. He found that the only matters which were raised were matters challenging findings of fact that had been made by the RRT and that such matters were not properly the subject of a review by the court. It is clear of course that it is not the function of a court hearing an application for review to conduct a merits review or to determine whether or not the findings of fact were appropriate. 16 Mr Silva has indicated that on the hearing of an appeal his clients would wish to raise under the proposed ground 1 in the amended draft notice of appeal the suggestion that there was no evidence to support a finding that the Applicants could access protection from authorities in India. He has referred me to a letter of 13 October 2003, apparently written by the mother of the first applicant, which stated in respect of a dispute with neighbours of the applicants who were giving them a "hard time" that "the police helped us as well". To put it into context, the letter said: "those people went to the police so we also went to the police. The police helped us as well. But the police are not going to stay with us all the time." 17 There is then material that reads: "They have misbehaved with our wives and daughters. We requested them 'Please don't do this to us', but they never listen to us." 18 It is uncertain whether those words were intended as a reference to the police or to the persons described as "our neighbours" who were giving the Applicants and the Applicants' family a "hard time". Be that as it may it is clear that there was evidence that the Applicants were able to access protection from the authorities in India when they were having trouble with the neighbours in question. 19 Accordingly, it would seem that there would be no merit in a ground suggesting no evidence for a finding that there was access to protection from the authorities, even if it were permissible for the Applicants to raise it. 20 I do not consider it necessary to deal with the other new grounds that are now proposed. It is clear that the findings of the Federal Magistrate were not attended with sufficient doubt to warrant a grant of leave to appeal. 21 Accordingly, I order that the application for leave to appeal filed 21 July 2005 be dismissed with costs.