FEDERAL COURT OF AUSTRALIA

Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207

ApplicantS 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

N 1694 of 2004

JACOBSON J

1 MARCH 2005

SYDNEY

THE COURT ORDERS THAT:

1.           The application for leave to appeal is refused.

2.           The adult applicants are to pay the respondent’s costs of the application, fixed in the amount of $1,000.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1.                       This is an application for an extension of time in which to make an application for leave to appeal against the orders and judgment of Federal Magistrate Lloyd-Jones dated 22 December 2004.  On that date the learned magistrate upheld the respondent's notice of motion and dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“RRT”) pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules as an abuse of process of the court.

2.                       Although the applicants have sought an extension of time within which to seek leave to appeal in my view this is not required because the application was made within the time provided by the Federal Court Rules.  I note the observation of Stone J in SZCET v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1516 at [5] regarding the distinction between Order 52 Rule 10(2)(b) and Order 52 Rule 5 of the Federal Court Rules. 

3.                       The application in this proceeding was filed within the 21 day period provided for by Order 52 Rule 5.  However, leave to appeal is required pursuant to section 24(1A) of the Federal Court Act 1976 (Cth) because the orders and judgment of the Federal Magistrate are interlocutory.

4.                       The husband and children of the applicant seek permanent protection visas which are dependent on the claims of the applicant.  I shall therefore refer to her as “the applicant”.

5.                       The applicant is a citizen of India who arrived in Australia on 12 March 1996 on a three year student visa.  During the applicant's stay in Australia she married a man from the family with whom she had boarded whilst a student.  The applicant claimed that her parents were furious when informed of the marriage.  The applicant claimed that her parents are orthodox and the area where she is from, Haryana, is considered a backward state in India where one cannot marry without the consent of one's parents.  She claimed that her father had disowned her and that her father said she may not be safe in society if she returns to India.

6.                       The very lengthy litigation history of the appellants case is usefully summarised at paragraph 5 of the judgment of Federal Magistrate Lloyd-Jones; see [2004] FMCA 1002. 

7.                       The applicant lodged an application for a protection visa on 8 December 1996 and the RRT affirmed the decision of a delegate to refuse to grant a protection visa on 1 July 1998.

8.                       The applicants claim to have a well-founded fear of persecution as a member of a social group, namely that the female applicant is an Indian woman.  She told the RRT that she would not be able to live freely in India because she married without permission of her parents and she added that she was a member of two social groups, firstly an Indian woman who married without her father's consent and, secondly, someone who had done something against their religion, namely marrying outside a section of the caste in which they are expected to marry .

9.                       The RRT observed that an applicant has to show that persecution is for a Convention reason and it is not enough to establish a well-founded fear of infringement of fundamental human rights, patriarchy or enforcement of laws of general application.  The RRT found that the applicant was not a refugee within the terms of the Convention as her own evidence indicated that any difficulty she may face in India arises not for a Convention reason but because her father is upset with her actions.

10.                   The RRT found that her father's threats were related to the female applicant as an individual not for reason of her membership of any social group.  It also found that her claim that she will face ostracism from any wider community did not amount to any persecution as she need not return to her home village and could live with her husband in another part of India.

11.                   On 24 January 2003 the applicant filed a draft order nisi in the High Court in respect of the RRT decision of 1 July 1998.  On 1 July 2003 Hayne J remitted the matter to the Federal Court and on 30 April 2004 Emmett J made orders by consent in proceeding N2612/2003 refusing the applicant an order nisi with costs.

12.                   Notwithstanding this, the applicant filed an application in the Federal Magistrates Court seeking review of the RRT decision of 1 July 1998 pursuant to section 39B of the Judiciary Act 1903 (Cth).  The learned magistrate noted the submissions of the respondent that the application was an attempt to re-litigate a case already disposed of and that it should be dismissed as an abuse of process, citing Walton v Gardner (1993) 177 CLR 378 at 393. 

13.                   At [9] the Federal Magistrate noted that in the case of self-represented litigants the court has a responsibility to independently consider whether any arguable case based on the material can be made out; see Yo Han Chung v University of Sydney [2002] FCA 186.

14.                   The magistrate was satisfied that there was nothing before him to persuade him that the notice of motion should not be upheld and he dismissed the application as an abuse of process.  He went on to consider whether any jurisdictional error had been demonstrated in the decision of the RRT but he found that there was no jurisdictional error in that decision.

15.                   In the present application the applicant relied upon an affidavit sworn on 18 November 2004.  The affidavit states simply that she wishes to appeal her case.  The applicant also filed a draft notice of appeal which states the grounds of appeal in the most general terms.  In my view there is nothing in the material before me to suggest that the applicant has any prospects of success on appeal.  There is nothing in the affidavit and the grounds, as I have said, are stated in general terms and are unparticularised.

16.                   The applicant appeared before me in person this morning but she made only very general submissions to the effect that the evidence in her case had not been considered.  She did not put anything before me this morning to indicate that there were any prospects of success on an appeal.

17.                   In my opinion the decision of the Federal Magistrate is not attended by sufficient doubt for the application for leave to appeal to be successful.  Accordingly, the orders that I will make are that the application for leave to appeal be dismissed with costs.

18.                   I give leave to Ms Rayment to file in court the affidavit which she swore on 28 February 2005 and the costs order then will be that I order the adult applicants to pay the Minister's costs of the application fixed, pursuant to the rules, in the amount of $1,000.

Associate:

Dated:              8 March 2005