SZCKL v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicants seek leave to appeal from an interlocutory judgment of Federal Magistrate Scarlett given on 7 April 2005. His Honour dismissed the application for review of a decision of the Refugee Review Tribunal ('the Tribunal') on the ground that the applicants had failed to comply with an order of the court made at a directions hearing, namely that the applicants had failed to file any amended application by 11 June 2004 or at all. 2 The applicants are husband and wife. They are both citizens of India who arrived in Australia on 14 May 2003. On 18 June 2003, they lodged an application for a protection visa on the basis of specific claims made by the husband (to whom I shall refer as 'the applicant'). On 30 June 2003, a delegate of the respondent refused the applicant's application for protection (Class XA) visas. On 29 July 2003, the applicant applied for review of this decision to the Tribunal. 3 By letter, dated 16 October 2003, the Tribunal invited the applicant to attend a hearing on 11 November 2003. In response to that letter, the applicant indicated that he did not wish to attend a hearing. On 14 November 2003, the Tribunal affirmed the delegate's decision not to grant a protection visa. 4 In summary, the Tribunal dealt with the applicant's claim which was to the effect that: · He was a farmer from the State of Gujarat. · He claimed that there was a strong Mafia group in his area that had been trying to persuade him to sell his farm land for their money laundering purposes. · He said that since his arrival in Australia he had been informed that the Mafia group had seized his land and that, if he were to return, he would be murdered. 5 The Tribunal accepted that the applicant was a farmer from Gujarat who had come to Australia to look at Australian farms but said that it was not satisfied that the remainder of the applicant's claims were true and found that even if they were true, fear from harm from a Mafia group was not a Convention ground. 6 The application to the Federal Magistrates Court was filed on 7 January 2004. When the matter came before that Court for directions on 2 April 2004, orders were made by consent including an order that the applicant file and serve an amended application on or before 11 June 2004. That direction was understandable when one takes into account the grounds of the application which are set out in [6] of Scarlett FM's decision: '(a) The Tribunal made his decision in bad faith; (b) The Tribunal denied the evidentiary proof of my claim; (c) The Tribunal deprived me of the natural justice; (d) The Tribunal mixed up many facts with this decision which affected the decision; (e) The Tribunal has given a decision which was pre-set in the back of its mind; (f) The Tribunal's decision did not reflect the material facts of my claim.' 7 On 22 March 2005, the respondent advised the applicant that she proposed to make a non-compliance application pursuant to the Federal Magistrate Court Rules. That application was heard on 7 April 2005. When the matter came before the Federal Magistrate on that occasion the applicant said he could not explain the grounds of his application because a friend had prepared them and that friend had returned to India. The conclusions of the Federal Magistrate are set out in [12] and [13] of his Honour's reasons as follows: '12. Turning to the application itself, the application does not provide any evidence of any reviewable error. Grounds (1) the allegation is bad faith, (3) the allegation that the Applicants' were deprived of natural justice, and (5) the allegation that the Tribunal gave a decision that was pre-set in the back of its mind, are not supported by any evidence whatsoever. I have read through the Tribunal's decision carefully and I can see no evidence at all of any bias, bad faith, procedural unfairness, prejudice or failure to provide natural justice. 13. Grounds (2) denial of the evidentiary proof of the Applicants' claim, (4) the allegation that the Tribunal mixed up many facts, and (6) the claim that the Tribunal's decision did not reflect the material facts of the Applicants' claim, amount to nothing more than an application for a merits review of the claim. I particularly point to the ground: The Tribunal denied the evidentiary proof of my claim.' 8 His Honour concluded by saying at [15]: 'The application does not show any reviewable error and my own perusal of the decision (the Tribunal decision) has filed to find any error on the part of the Tribunal.' 9 The application for leave to appeal annexes a draft notice of appeal which is in a form with which this Court is familiar: '2. The Single judge of the Federal Magistrate Court in his Honor's Judgment delivered on the 7 April 2005 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903. 3. The grounds and relief is very much similar with a recent High Court Judgment - Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration - Refugee - Protection visa - Decision by Minister to refuse application for visa - Review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review - Nature and extent of obligation - Migration Act 1958 (Cth), ss 148(3), 424(1). 4. The Honorable FM erred in considering the real state of affairs of the me, I feared harm. And also the present ruling government failed to protect politicians & civilians life, which is a worldwide concern today. Honorable FM did not take it into consideration. 5. S474 of the Migration Act 1958 is ineffective as per the recent two decision of the High Court of Australia. Honorable FM did not consider this in favour of me. 6. I will face persecution if I return to my country of origin as there are significant level of violation of human rights, this was not considered by honourable Federal Magistrates. 7. Recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 8. Recent Federal Court of Australia judgement: SGDB V Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003). 9. I did not receive the copy of judgement yet.' 10 It is apparent that none of the grounds have been properly particularised. Ms Knight, who appears for the respondent, draws my attention to the fact that they are different to the grounds set out in the application before the Federal Magistrate. They do not, apart from ground 2, relate in any way to the decision of the Federal Magistrate. Ms Knight submits that the draft notice of appeal does not provide any proper grounds for review but rather sets out a number of formulae for judicial review and unparticularised assertions. Further, she submits that insofar as they are comprehensible they appear to be misconceived or irrelevant. There is some force in those submissions. 11 I do not propose to deal with the grounds in detail. It is apparent that no basis for any of them is made out. Nor has there been any attempt on the part of the applicant to bring himself within the factual matrix in order to rely upon cases such as Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. Otherwise, to the extent that the grounds have any relevance, they relate to an application for merits review. 12 The applicant appeared before me today in person, assisted by an interpreter. When I asked him what he wished to say in support of his application he said that there was nothing he wished to say. He said, further, that he was not familiar with the procedures of the Court. 13 The principles to be applied in an application for leave to appeal an interlocutory decision are set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. It is necessary to consider whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision below to be wrong. 14 No doubt, let alone sufficient doubt, has been raised with respect to the decision of the Federal Magistrate or, indeed, of the Tribunal. In my opinion any appeal in relation to these decisions is futile and it cannot be said that substantial injustice would result if leave is refused. In my opinion the leave to appeal should be refused. 15 The application for leave to appeal is dismissed, I order the applicant to pay the respondent's costs of the application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.