FEDERAL COURT OF AUSTRALIA

SZHVP v Minister for Immigration and Multicultural Affairs [2006] FCA 1360

APPEAL – Leave to appeal – no arguable case – no jurisdictional error – leave to appeal refused.

Federal Magistrates Courts Rules 2001: Rule 44.12(1)(a)

Migration Act 1958 (Cth)

SZHVP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NSD 962OF 2006

BUCHANAN J

19 October 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  Leave to appeal is refused.

2.                  The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

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.

leave to appeal

19                  The decision of Federal Magistrate Driver, which the applicant desires to challenge, is an interlocutory one by virtue of Rule 44.12(2) of the Federal Magistrates Court Rules 2006.

20                  In the case of interlocutory decisions a distinction is normally made between those interlocutory decisions which deal with matters of practice and procedure and those which have the effect of finally disposing of an applicant’s claims. In the latter class of case leave will be granted more readily. Counsel for the first respondent drew attention to this principle but submitted that the present case was an appropriate one for leave to be refused for the reason that the appeal could not succeed on any view.

21                  I was urged, if I granted leave, to treat the matter as a hearing of the appeal and to determine the appeal itself. I ruled that this was the course I would follow.

22                  The applicant’s contentions amount to a generalised assertion that the merits of his case for a protection visa have not been appreciated. In one sense that is understandable. The applicant is not a lawyer, he is a person who wishes to remain in Australia. His argument in substance is that his case deserved a better result.

23                  In answer to my invitations to advance any matters upon which he wished to rely to suggest that the Federal Magistrate was in error the applicant disclaimed any argument that the Federal Magistrate had committed an error. I would not treat these remarks as a concession having any legal significance but they are consistent with my view that the essence of the applicant’s position is simply that he desires a different outcome upon an overall assessment of his claim for a protection visa and, in particular, wishes a different view to be taken of the merits of his case than that taken by the delegate and the RRT. It is not the function of this Court to make such an assessment.

24                  Leaving aside dissatisfaction with the decisions on his application by the delegate and the RRT and disappointment that the proceedings before the Federal Magistrate did nothing to alter that outcome, there is no suggestion before me of any error committed by the Federal Magistrate which could justify any interference with his conclusion.

25                  In my view, the present is not an appropriate case for the grant of leave to appeal. There is no case, based on the identification (or appearance) of error to be considered. The application for leave to appeal will be refused.

the grounds of appeal

26                  I would in any event have dismissed the appeal had the case been a suitable one for the grant of leave.

27                  The Federal Magistrate felt that four grounds, ‘might have raised legal issues requiring further consideration if there had been any evidence to support those grounds’. He dismissed the application to show cause because there was no evidentiary support for those grounds or the other grounds of challenge before him.

28                  The four grounds were as follows:

‘6. The applicant was confused and mentally blocked at the time of hearing. The Tribunal should not have taken the nerousness (sic) of the applicant to pass orders against him.

8.        The applicant states that Tribunal seemed to have dealt with this matter with a pre determined mind and therefore the Tribunal has committed jurisdictional error.

9.        The applicant states that his matter has not been considered properly and therefore he has been denied procedural fairness and the principles of natural justice has been denied to him.

13. The Tribunal had approached the matter with closed mind. This is evidence from the fact that the Tribunal had dissmissed (sic) casein few line, merely stating that the claims have been fabricated.’

29                  Those grounds are repeated before me in a draft notice of appeal upon which the applicant would rely if leave to appeal was granted. They were incorporated by reference in an affidavit filed on 18 May 2006 in support of his application for leave to appeal. I will deal with them briefly.

30                  As to paragraph 6 there is no evidence to support the proposition that the RRT treated the applicant unfairly because of the way he presented when he gave his evidence. Mere assertions to this effect cannot assist him.

31                  Paragraph 9 involves a misstatement of the elements of procedural fairness and natural justice. It would be necessary for the applicant to demonstrate the way in which the ‘matter has not been considered properly’. There is no evidentiary or other support for the proposition.

32                  Paragraphs 8 and 13 in effect allege jurisdictional error arising from a denial of natural justice constituted by actual or perceived bias. Evidence was required to make such a proposition a foundation for consideration by the Federal Magistrate unless the argument could be sustained by reference to the record. Neither foundation for the proposition was available.

33                  I think the Federal Magistrate was right to put paragraphs 6, 8, 9 and 13 aside as possible bases upon which to grant the applicant a remedy. Furthermore, I agree that the remainder of the grounds do not afford a foundation for a remedy under s 476 of the Migration Act 1958.

34                  Were it necessary for me to decide the appeal I would dismiss it.

costs

35                  The first respondent seeks costs. I can see no reason in principle why costs should not follow the result and I will order that the applicant pay the first respondent’s costs.

Associate:

Dated: 19 October 2006