SZEFT v Minister for Immigration & Multicultural & Indigenous Affairs

Notice of motion seeking the setting aside of the orders of 2 August 2005 7 On 19 August 2005, the appellant filed a notice of motion seeking that the orders made on 2 August 2005 be vacated and seeking a further hearing of the appeal. In an affidavit sworn on 17 August 2005 and accompanying the notice of motion, the appellant states that he did not appear at the hearing of 2 August 2005 due to 'serious illness'. He further states that he was unable to inform the Court beforehand because of the 'nature of illness'. The appellant also states that he 'will explain my illness in the court when I come for hearing'. 8 By letter dated 22 August 2005, the Court wrote to the appellant, on my instructions, informing him that any claim of illness should be accompanied by appropriate evidence. No such evidence has been provided. 9 When the appellant's notice of motion was called on for hearing this morning the appellant did not appear. I adjourned the Court for ten minutes in case he had been temporarily delayed but still there was no appearance. In the circumstances I decided that it would be best to deal with the notice of motion on its merits.

Principles governing the power to set aside orders 10 Section 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth) ('FCA Act') provides that a single judge may set aside an order made under s 25(2B)(bb) of the FCA Act which is an order made in the exercise of the Court's appellate jurisdiction. In SZAYF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 489, Sackville J commented in respect of an application under s 25(2B)(bc) at [6] that: 'The authorities establish that on an application to set aside an order for summary dismissal made in the absence of the applicant or appellant, the most relevant factors to be taken into account are: · whether a satisfactory explanation has been provided for the non-attendance by the applicant or appellant; and · whether the applicant or appellant has an arguable case. These are not necessarily the only factors to be considered, but they are usually the most significant: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503, at 506, per Hope JA (with whom Glass JA agreed), at 510, per Mahoney JA; Glenhill Enterprises Pty Ltd v BP Australia Ltd [1993] FCA 1023, at 7, per Whitlam J.' 11 It is pertinent to note that the principle behind denying the right of the Court to vary or alter a judgment regularly given and entered is the need to finality of litigation: see Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 per Lee, Hill and Cooper JJ at 235.

Consideration 12 As noted above, the appellant has submitted that he was unable to attend the hearing of 2 August 2005 because of illness. It is plain that the appellant was aware that he was able to seeking an adjournment of this hearing date from his conduct in respect of the earlier hearing date of 27 June 2005. However, the appellant claims that he was unable to even contact the Court because of his illness. 13 The appellant has not tendered any material to this Court to support his claim of illness in the period surrounding 2 August 2005. This is despite being expressly informed by the Court prior to the hearing of the need to provide such evidence. In addition, I note that the appellant has previously obtained and provided to the Court a medical certificate to support a claim of illness. As such, it is plainly the case that the appellant is aware of the availability of medical certificates and their importance as supporting material to a claim of illness. 14 In order to consider whether the appellant has an arguable case, it is necessary to recount the circumstances surrounding his application to the Federal Magistrates Court. 15 The appellant arrived in Australia on 3 March 2004. In his application for a protection visa he said that he is a Punjabi Hindu who has completed eight years of education. From February 1983 to December 2003 he was a self-employed businessman running a garage in Mumbai. He lived at the same address in India from 1992 to February 2004. 16 In his application for a protection visa the appellant claimed that should he be returned to India he would be exposed to persecution from Muslims, Hindu fundamentalists and state intelligence agencies. The basis of his fear, as explained by the appellant, is complicated but central to it was an experience in June 2003 that the Tribunal summarised as follows: 'The applicant's claims are based on the Convention grounds of political opinion and religion. His case is essentially that in June 2003 a vehicle was stolen from his garage and it was later alleged that the vehicle had been used in transporting weapons and ammunition. Consequently, the applicant was detained and questioned by the police. After a few months the police arrested and detained one [of] the applicant's Muslim employees who later died in custody.' 17 The appellant claimed that although the police failed to charge him this was not the end of his troubles but the beginning. In a statutory declaration made in support of his application he said: 'Now police believed I was in connivance with the anti national forces. The terrorists thought I was naming Muslims for their involvement and Shiv Sheva, the dominant Hindu party believed I was colluding with Muslims for sake of money. So whenever there was a crime relating to terrorist activity or Hindu Muslim clash I was target of all the three sides. … In a highly politicized atmosphere, where we could not even get assurance of protection and could not do any thing to get a source of livelihood, we felt suffocated. With great difficulty I could manage a visa for Australia and came here directly …. I have nowhere to go. If I go back, I can be killed by Muslims or may be power hungry Hindu fundamentalists or state intelligence agencies' 18 The Tribunal generally accepted the appellant's account of his arrest and interrogation by the police but stated that it was satisfied that actions of the Indian police 'were appropriate and adapted to achieving some legitimate object of the country, namely to protect the general welfare of society'. The Tribunal found that there was no evidence to suggest that the police mistreated the appellant for a Convention reason. The Tribunal found that the police had no continuing interest in the appellant and referred to the fact that the appellant was able to leave India legally using his own passport. 19 The appellant had also referred to two other incidents: one in which his garage was vandalised around October or November 2003 and one in which he claimed to have been assaulted in February 2004 by six or seven men whom he identified as Muslims because they used Urdu words. In relation to the former incident, the Tribunal said that there was no reason to suppose it was 'anything more than an opportunistic act of vandalism'. In relation to the latter incident, the Tribunal was sceptical about the accuracy of the appellant's identification of his assailants as Muslim on such flimsy evidence. On the appellant's account his assailants had not said anything to the appellant and the evidence did not support his conclusion that the assault was for a Convention reason. The Tribunal continued: 'Even if the Tribunal were to accept that the combination of the applicant's perceived involvement in his employee's arrest and subsequent death and his Hindu faith had imputed him with a political opinion viewed adversely by his Muslim neighbours, the Tribunal is of the view that adequate and effective state protection is available to the applicant at a level to render any risk of future harm remote.' 20 Moreover, the Tribunal found that in not reporting the incident of assault to the police the appellant had not taken reasonable steps to avail himself of state protection. The Tribunal also noted that the appellant continued to live in Mumbai at the same address and work at the same workplace for eight months after the episode of 5 June 2003. 21 The Tribunal also expressed the view that it would be reasonable for the appellant to relocate to a different part of India. It seems, however, that there is an error in the Tribunal's expressions of its views on this point. The Tribunal said: 'It is clear that the applicant's fears are highly localised and confined to his locality in Mumbai. Indian citizens enjoy freedom of movement within the country and generally speaking there would be no problems for Muslims relocating within India.' [Emphasis added]

As the appellant is a Hindu the reference to Muslims in the above comment appears to be an error. The immediately following comments of the Tribunal support this: 'The applicant is literate and speaks Punjabi and Hindi. He is clearly able to adapt to new environments, given his ability to settle in Australia and find work. … The Tribunal is satisfied that if the applicant wished to avoid the Muslims or Shiv Sena in his area or Mumbai for that matter it is reasonable for him to relocate to a different part of India. 22 Before the Federal Magistrate the appellant claimed that the Tribunal made jurisdictional errors in that: (a) it drew conclusions about the appellant's ability to relocate in India without an evidentiary basis; (b) the Tribunal's conclusion that the appellant would be able to relocate was so unreasonable as to amount to 'Wednesbury unreasonableness'; (c) the Tribunal's conduct of the review was procedurally unfair; and (d) the Tribunal was in breach of s 430(1)(c) and (d) of the Migration Act 1958 (Cth). 23 The Federal Magistrate considered and rejected all these grounds of review for cogent reasons. Finding no reviewable error in the Tribunal's reasons, his Honour upheld its decision and dismissed the application. His Honour summarised his conclusions thus: 'It is apparent that the Tribunal reached the view that on all bases the applicant did not have a well-founded fear of persecution if he were to return to India. The Tribunal found that the incidents to which the applicant had referred did not amount to persecution as understood under refugee law. The treatment he had suffered was not for a Convention reason. There was effective protection available to the applicant in India, and even if he maintained that he had fear in his region, it would be reasonable for him to relocate to a different part of India. The findings were reasonably open to the Tribunal on the material before it. It is clear to me that the applicant's dispute is not with any legal error made by the Tribunal, but rather with the factual findings the Tribunal made. On close examination of the Tribunal's decision, I am satisfied that it made no legal error going to jurisdiction in coming to that decision.' 24 The appellant's notice of appeal to this Court states his grounds of appeal as being (a) that the Federal Magistrate failed to determine 'whether there was any jurisdictional error in the purported decision of the Tribunal'; and (b) that his Honour did not consider legal arguments that were put to him. No particulars are given and the appellant has not provided any written submissions in support of his appeal. 25 In my view, the first ground of appeal must be rejected. His Honour specifically addressed the issue of jurisdictional error and after a careful review of the Tribunal's reasons expressed his conclusion, quoted in [23] above, that the Tribunal had not made any jurisdictional error. 26 In the absence of particulars it is difficult to understand the second ground of appeal. The first respondent suggests that it may refer to his Honour's refusal to allow the appellant to file a further amended application. In referring to this request his Honour said: 'At the hearing before me the applicant sought leave to file a further amended application. This relied on the allegation that the delegate had failed to notify the applicant according to law. For reasons that I gave at the hearing, this application was futile, manifestly hopeless and bound to fail. I therefore refused leave for the filing of that further amended application.'

27 Nothing has been put before the Court to cast any doubt on the appropriateness of his Honour's refusal to allow the further amended application to be filed. His Honour's reasons do not disclose any error.

Conclusion 28 In my view, the appellant's motion seeking to have the orders made on 2 August 2005 set aside must be refused. The appellant has not offered a satisfactory explanation for his failure to appear at the hearing of his appeal. In any event, if I were to set aside the orders of 2 August 2005 and allow a hearing on the appeal, it would be bound to fail. The decision of the Federal Magistrate is not, in my opinion, attended by any doubt. Having regard to the decision of the Tribunal, his Honour was correct to dismiss the application for review. 29 The notice of motion must be refused. I further order that the appellant pay the first respondent's costs in respect of the motion fixed in the amount of $500. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 6 September 2005 No appearance for the Appellant.

Solicitor for the Respondent: Blake Dawson Waldron