SZHVP v Minister for Immigration and Multicultural Affairs

INTRODUCTION 1 This is an application for leave to appeal against a decision of Federal Magistrate Driver given on 1 May 2006. 2 His Honour dismissed, under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001, an application to the Federal Magistrates Court that the respondents show cause why a remedy should not be granted to the applicant in relation to a decision of the Refugee Review Tribunal ('the RRT') signed on 31 October 2005. The applicant sought that the Federal Magistrate send the matter back to the RRT to 'decide the matter afresh'. 3 Rule 44.12(2) of the Federal Magistrates Courts Rules 2001 provides that dismissal of an application to show cause pursuant to Rule 44.12(1)(a) is an interlocutory decision. Leave to appeal is therefore required before the substance of the appeal needs attention.

BACKGROUND 4 The summary of the facts which follows is taken from the Decision Record of the RRT and the Reasons for Judgment of the Federal Magistrate. 5 The applicant is a citizen of India. He arrived in Australia on 18 February 2005. On 31 March 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then called) under the Migration Act 1958 (Cth). On 3 June 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 27 June 2005 the applicant applied for review of the delegate's decision. 6 The applicant gave evidence before the RRT on 25 October 2005. He claimed that he had suffered harassment and threats from Muslim militants following his military service in Kashmir and that he feared for his life and the lives of his family and believed the Indian authorities could not protect him. 7 In a written statement before the RRT the applicant said that after completing his schooling in the mid-1970s he joined the Indian Army and had a distinguished career. In the years preceding his departure from India a terrorist group known as Laskar-e-Toiba demanded information from him about military security. One morning three people attempted to kidnap his daughter but the attempt failed when his wife screamed. Terrorists associated with Laskar-e-Toiba tried to kidnap him from a military camp in Kashmir but the attempt failed and a number of the terrorists were seriously injured. He retired from military service after this event and returned to his home state of Kerala. He stated that terrorists from Laskar-e-Toiba wanted to take revenge for the injuries sustained by their colleagues in the failed kidnapping attempt upon him. 8 In oral evidence before the RRT the applicant stated that he believed those who tried to kidnap his daughter were from both Laskar-e-Toiba and Al-Qaeda. He said that he retired from the military on 31 July 2000, six or seven months after the kidnapping attempt on his daughter. 9 According to the applicant he was thereafter harassed for information from time to time and in various places by the same Islamic militant groups until he departed for Australia in February 2005. 10 Later, before the Federal Magistrate, the applicant said his assertion that members of Laskar-e-Toiba had attempted to kidnap him was a mistake and in fact he was being pursued by Al-Qaeda terrorists. 11 The RRT found the applicant's claims 'far fetched', indeed it found the claims to have been 'fabricated'. It concluded that it was not satisfied the applicant had a well founded fear of persecution and decided he did not satisfy the criteria for a protection visa. Accordingly it affirmed the decision of the delegate not to grant a protection visa. 12 The applicant, as he was entitled to do, applied to the Federal Magistrate's Court for judicial review of the decision of the RRT. 13 The Federal Magistrate records in his Reasons for Judgment that orders were made for the filing of material, including evidence upon which the applicant might wish to rely. No evidence was filed by the applicant. 14 The Federal Magistrate concluded that the grounds advanced in the application before him were, with the exception of four, 'either an attack on the merits of the RRT decision or bald unparticularised assertions'. He recorded that: 'Grounds 6, 8, 9 and 13 might have raised legal issues requiring further consideration if there had been any evidence to support these grounds. However, there is no supportive evidence. In the absence of evidence, those grounds must fail. To the extent that the applicant contests the merits of the RRT decision, his application must also fail. On my reading of the RRT decision, there is no jurisdictional error.' I discuss these four grounds later. 15 The Federal Magistrate concluded that 'the amended application fails to disclose an arguable case' and dismissed it. 16 It is against that decision that the present appeal is brought. 17 At the hearing before me the applicant indicated that he wished an opportunity to assemble and present some further evidence. The evidence which he indicated he would like to produce was exemplified by two documents in court which were described to me as a photocopy of his military medals and a list of the establishments at which he had worked in his military career. He said that he had 'a book full' of similar material. 18 I declined to adjourn the proceedings and I declined to receive the documents which were in court. In my view they do not bear upon the issues which arise for my decision. In any event, the applicant had an ample opportunity to bring such matters to the attention of the delegate, the RRT and the Federal Magistrate. He was directed to file evidence upon which he wished to rely before the Federal Magistrate but did not do so.