SZDKF v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 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: 'The applicant states that he is concerned that Sikh people were not treated equally by the national government. I recognise that there are long-standing grievances on the part of the Sikh population towards aspects of the Indian government's policies but independent information indicates that Sikh people are able to, and do, participate actively in all walks of Indian life. I do not consider that the evidence indicates a real chance that discrimination which the applicant claims to fear he might face as a Sikh would constitute serious harm and so of a kind which could constitute persecution.' [emphasis added]