FEDERAL COURT OF AUSTRALIA

SZOWL v Minister for Immigration and Citizenship [2011] FCA 551

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This is an application for leave to appeal against the decision of Cameron FM delivered on 9 March 2011: SZOWL v Minister for Immigration & Anor [2011] FMCA 150.

2    In the Court below the applicant sought judicial review of the decision of the Refugee Review Tribunal handed down 30 November 2010 in which the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the applicant. The form the proceedings took before his Honour was an application by the applicant that the respondents should show cause why relief should not be granted to him in respect of the Tribunal’s decision. As his Honour observed at [4] in the decision below, at a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r 44.12 of the Federal Magistrates Court Rules, if the applicant does not have an arguable case against the respondents. His Honour dismissed the application and it is from this decision that the applicant seeks leave to appeal.

BACKGROUND

3    The applicant is a citizen of India who arrived in Australia on 18 September 2008. On 5 August 2010 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused this application on 22 September 2010. On 12 October 2010 the applicant applied to the Tribunal for review of that decision.

4    In his protection visa application the applicant claimed he was a member of the Khalistan Movement in India and fled because he feared persecution because of this affiliation. The applicant indicated he was an extremist Sikh. The applicant claimed his father had been arrested and that he had been involved in political clashes with the Hindu Sheva Sana Party. He also claimed his uncle was shot and killed by the Indian Security Forces. He also states that while he was at college he had been placed on a hit list by the Hindu Student Federation (HSF). The applicant stated he had been the victim of death threats and attempts to raid his house and attack or kidnap him. The applicant outlined that he had been attacked many times by members of the HSF and that the Indian authorities had not provided him with protection.

REFUGEE REVIEW TRIBUNAL

5    On 21 October the Tribunal wrote to the Applicant informing him that based on the material before it they were unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present his claims at the Tribunal hearing on 30 November 2010. The correspondence from the Tribunal indicated to the applicant that if he did not attend the hearing then the Tribunal may make a decision on his case without further notice. The applicant stated he would not be attending the hearing.

6    The Tribunal was not satisfied the applicant held a well founded fear of persecution. The applicant did not provide any documentation or other evidence to support the claims contained in his original protection visa application. The Tribunal was hindered from gathering more information from the applicant by his decision not to attend the Tribunal hearing. The applicant’s claims were thus not clarified and on the basis of the evidence before it the Tribunal was not satisfied that the applicant had suffered persecution in the past or would in the future if he returned to India.

FEDERAL MAGISTRATES COURT

7    On 20 December 2010 the applicant filed an application that the respondents should show cause why relief should not be granted to him. In this application the following claims were advanced:

1.    The respondents failed to consider the evidence of the applicant, which resulted in the error of the law.

2.    That the issues raised by the applicant were not discussed, and proper findings were not given in the instant matter, this is the jurisdictional error.

3.    That the applicant has got an arguable case before this court, the applicant shall submit a detailed legal/written submission.

8    An affidavit was filed in support of the application on 20 December 2010. The applicant outlined in this affidavit that the Tribunal did not make a decision based on the laws and facts and had not considered the current situation in India.

9    The Federal Magistrate dismissed the application finding that the Tribunal had discharged its obligation under the Migration Act 1958 (Cth) (the Act) when it gave the applicant an opportunity to appear at the hearing and give evidence under s 425 of the Act.

10    The Federal Magistrate held that there was no evidence that the Tribunal had not considered the applicants claims. The applicant’s assertion was hampered by a lack of particularity and substance. The Tribunal had considered the claims held in the applicant’s protection visa application and it was open to the Tribunal to dismiss the claims as lacking in detail. The Federal Magistrate held a discussion of the claims at length was not necessary. While the applicant asserted that the Tribunal had not discussed the issues he raised, the applicant did not indicate which issues the Tribunal did not consider or discuss. The Federal Magistrate dismissed this claim.

11    The Federal Magistrate held that the applicant’s claim that the Tribunal did not make proper findings misunderstood the purpose of the Tribunal. The Tribunal is to determine whether it is satisfied that an applicant meets the criteria for a protection visa, and in this case the Tribunal fulfilled this role. The Tribunal’s conclusion that the applicant’s claims lacked detail was a sufficient basis for its decision.

12    The claims contained in the applicant’s affidavit were also addressed by the Federal Magistrate. The applicant had alleged that the Tribunal did not consider country information, however the applicant had not provided any such information to the Tribunal, and the Tribunal was not required to undertake its own inquiries. Contrary to the applicant’s claims that the Tribunal based its judgment on its imagination, the Federal Magistrate found that the Tribunal conducted a bona fide review. The claim that the Tribunal’s reasons were stereotypical was not substantiated. The applicant had claimed the Tribunal did not mention the general suffering of Sikhs in India, however the Federal Magistrate outlined that the Tribunal was to examine the specific and personal claims of the applicant.

APPEAL TO THIS COURT

13    On 30 March 2011 the applicant filed an application for leave to appeal against the judgement of Cameron FM on 9 March 2011. The application contained the following draft grounds of appeal:

1. I have been given warning by the HSF that I shall be killed as I have mentioned that my name has been placed on the hit list, I have been searched by them couple of times. They have even published a list wherein my name appears on that list that I shall be killed as soon as they get hold of me, I have been attacked many a times by the Hindu Extremists, and their above named groups. The authorities have failed to give me the protection, and my life is in great danger based on the conventional grounds by way of religion and race. Finding no other alternatives I obtained an Australian visa, in order to save my life from the hands of HSF because no place of India is out of reach for them.. My other friend [NAME DELETED] had also suffered the same, and we underwent the same circumstances, many other our Sikh student also suffered very badly by the hands of the above group, they have the backing of the all the political parties.

2. The applicant belongs to a very activist family of supporters of Khalistan Movement in India, my father and other members of the family are extremists Sikhs (Sardar). Our aims and objectives were to support the Sikhs all over India, those who lost their love ones those who gave away their lives during the days of the raid on the Golden Temple of The holy place of Sikh religion, my father and uncles were also made the victims of state terrorism by the Indian authorities in India. Throughout my educational carrier I studied as a private candidate and passed my HSC as a private student. I devoted all of my time to study the reasons and the objectives of the Hindu extremists and the terror and the reasons as to why our Sikh community was destroyed at large by the elders of the Indian authorities. I reached to the conclusion that since our elders wanted an independent homeland for the Sikh living all over the India and the world. I along with my other friends joined the All India Sikh Student Federation to fight for our rights.

3. The decision, by honourable Magistrate, lacks the issues raised by the applicant, as such the respondents have committed an legal error by not taking into consideration the principle of natural justice.

(errors in original)

14    An affidavit filed by the applicant on 30 March 2011 contained similar material, outlining his history of persecution. The affidavit concludes:

I have been made victim of systemic harassment’s, persecutions and constant threats of death to my life.

The applicant has a arguable case and the applicant hopes to succeed in his application for judicial interference.

(errors in original)

15    At the hearing before me this afternoon the applicant did not enter an appearance. The Minister was represented by Ms M Johnson.

16    The hearing this afternoon was originally listed to be heard at 2.15 pm. Ms Johnson tendered a copy of a letter dated 16 May 2011 from the Minister’s solicitor, Sparke Helmore, giving the applicant notice of the date and time of the hearing.

17    Yesterday my chambers contacted the parties to inform them that the matter would not be heard before 3.15 pm today. A note on the Court file indicates that my personal assistant spoke with the applicant at 2.55 pm yesterday afternoon. I note that the applicant has English language skills, to the extent that he did not require an interpreter for the hearing today.

18    When the applicant did not appear this afternoon the Court officer in Sydney called the matter outside the Court room. Notwithstanding this there was no appearance by the applicant.

19    During the adjournment this afternoon my associate rang the applicant on his mobile phone number nominated on the Court file. Although the phone was initially answered, on-one identified themselves in answering. All subsequent attempts by my associate to contact the applicant resulted in the phone ringing out.

20    In light of these events, I propose to consider the application on the material before me.

CONSIDERATION

21    There is no dispute that the decision of the Federal Magistrate below is an interlocutory decision: r 44.12(2) Federal Magistrates Court Rules. Accordingly, leave of the Court must be obtained to appeal from his Honour’s decision: s 24(1A) Federal Court of Australia Act 1976 (Cth).

22    The leading authority in respect of principles relevant to the grant of leave to appeal from interlocutory judgments is Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In that case the Full Court held that, in order to succeed, the applicant was required to show, in summary:

    that there is sufficient doubt as to the correctness of the judgment below to warrant review; and

    that, if the judgment below were assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

23    In this case the applicant has not established that there is sufficient doubt as to the correctness of his Honour’s decision to warrant review. I take this view because:

    draft grounds of appeal 1 and 2 of the application are, in summary, a recitation of the applicant’s grievances. To that extent the applicant appears to seek merit review by the Court which is not permitted under the Act: Abebe v Commonwealth [1999] 197 CLR 510.

    draft grounds of appeal 1 and 2 do not identify any error in the decision of the Federal Magistrate, or the reasoning of the Tribunal.

    to the extent that the applicant contends in draft ground of appeal 3 that the Federal Magistrate did not give proper consideration to the case, this claim is not borne out by the comprehensive reasons for judgment given by his Honour.

    To the extent that the applicant contends in draft ground of appeal 3 that he was not accorded procedural fairness, I am unable to identify any basis for such an allegation in respect of either the reasons of the Tribunal or the decision of his Honour. I make this observation particularly in light of the fact that the applicant did not attend the hearing before the Tribunal, with the result that the Tribunal was required to make a decision on the material before it. While clearly every case before the Tribunal must be assessed on its own merits by the Tribunal, I note the observations of the Full Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] in relation to circumstances where an applicant does not attend a scheduled hearing before the Tribunal.

24    It follows that the appropriate order is that the appeal be dismissed with costs.

Associate:

Dated:    24 May 2011