SZDPE v MIMIA [2005] HCATrans 764 (14 September 2005)

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SZDPE v MIMIA [2005] HCATrans 764 (14 September 2005)

Last Updated: 20 September 2005

[2005] HCATrans 764

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S297 of 2005

B e t w e e n -

SZDPE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 14 SEPTEMBER 2005, AT 10.26 AM

Copyright in the High Court of Australia

SZDPE appeared in person.

MS S.A.H. MASON: May it please the Court, I appear for the respondent. (instructed by Clayton Utz)

HIS HONOUR: Yes, Ms Mason.

MS MASON: Your Honour, the applicant appears in person with the assistance of an interpreter.

HIS HONOUR: Yes, Mr Interpreter. I think you should be sworn.

IQBAL HYE CHOWDHURY, affirmed as interpreter:

HIS HONOUR: Thank you. Would you say to the applicant that I will hear and listen first to what Ms Mason says and then ask him for any response he wishes to make to what she says. Yes, Ms Mason.

MS MASON: Your Honour, might I raise initially what is probably a housekeeping matter. There is an irregularity in the summons.

HIS HONOUR: The summons is - - -

MS MASON: It was filed with the Court on 9 August 2005.

HIS HONOUR: Yes.

MS MASON: Just insofar as the orders which were actually sought do not propose the reinstatement, there is an assumption, really, an inference drawn from the only order which is there which is for an extension. I just draw that to your Honour’s attention in the event that the orders need be made.

HIS HONOUR: Yes, thank you. Now, you have your written submissions?

MS MASON: We do and I rely on those on behalf of the respondent, your Honour. Your Honour will see from the submissions, and if your Honour has had an opportunity to read the two decisions of the Court below - - -

HIS HONOUR: Yes. It would be useful if you summarised them so it can be related to the applicant.

MS MASON: Indeed. That really the sole issue in both the courts below was whether in respect of the relocation issue there was a jurisdictional error made by the Tribunal by failing to consider claims which were not made by the applicant but which on behalf of the applicant it was submitted in the Federal Magistrates Court ought to have been reasonably available on the materials before the Tribunal.

The first of those issues, your Honour, was whether or not the applicant’s wife spoke English and therefore whether relocation was reasonable in respect of her and the second was whether in response to a claim by the applicant that he feared what might occur when he returned to his country at the airport that the Tribunal failed to examine what might happen after he left the airport but before relocation were possible.

In the Federal Magistrates Court, your Honour, the learned federal magistrate found in relation to the language question that in some circumstances it would be appropriate to examine the practical realities for other members of an applicant’s family group but that the ability of the applicant’s wife to speak English or not was not something which ought be so glaringly obvious – were the words of the Tribunal – that it arose from the materials before the Tribunal.

Having considered that, the learned federal magistrate also found, your Honour, that the fact that the wife did not speak English would not in any event have been determinative to suggest she could not relocate within India if what was proposed was that she might at some stage relocate to Australia. In respect of the second issue, being the danger or persecution that might be faced between arriving back in India and relocating, the learned federal magistrate found that this was not a particular matter which was obvious on the materials but that in any event the Tribunal had considered what would occur prior to relocation as a whole and having considered it in that general sense that whole period contained that temporal specificity that was being alleged as a ground that had not been properly addressed.

Your Honour will see that in the Federal Court on appeal the precise same arguments were raised by the applicant. The applicant declined to make any further submissions or arguments before his Honour despite being given an opportunity to do so and on the basis that nothing further was advanced his Honour Justice Edmonds found that there was no jurisdictional error arising either on the part of the Tribunal or the learned federal magistrate in the court below.

With respect to the matters which have been already addressed in my written submissions, your Honour, I would respectfully submit that the only issue which could arise in respect of an application for special leave in this honourable Court is really an assessment of the test which is set out by his Honour Chief Justice Black in the Randhawa decision as to what minutiae and to what degree one really needs to look at unsubstantiated or unmade claims.

In my respectful submission, that matter is adequately dealt with by his Honour in the Randhawa decision, together with the Full Federal Court in NABE V Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 and that there is nothing arising in respect of the facts pleaded in this matter or sought to be advanced on an application for special leave which would suggest that this case is a vehicle for any test of that kind, having regard to the practical matters. May it please the Court.

HIS HONOUR: Thank you. Mr Translator, will you ask the applicant if wants to say anything in addition to the written material?

SZDPE (through interpreter): My statement is what I would like to say. My wife can read English but she cannot speak. I can read a little bit of English and I can understand, but I cannot – I read Hindi. For that reason I do not think it has been justified that I can relocate in India and any other place.

If I return to my country, I may face some problems, that what is happening is there is murder and anti-social activities. These things are operate much in West Bengal and the politics has to be very much dirty, especially in West Bengal. It has been observed that in the past in the election time these people were killed in the election period. What happened, like one of my friends after six years he returned from the United States, from America, and he was about to buy a ticket at the station and from that station he was taken away and then he was killed. He was murdered. For these reasons – so I am praying to this honourable Court that you permit me to stay here with a permit – permission to work.

HIS HONOUR: I am not here to answer questions. I am here to hear what is said. Yes, go on if you wish to say any more.

SZDPE (through interpreter): No.

HIS HONOUR: I do not need to hear you, Ms Mason.

Before the Court is a summons filed 9 August 2005 which has been treated as an application for reinstatement of a special leave application which is deemed abandoned. The special leave application seeks special leave to appeal from a decision of the Federal Court constituted by Justice Edmonds which was sitting on appeal from the Federal Magistrates Court of Australia.

The respondent Minister does not contend that any prejudice would be suffered by reason of the reinstatement and she makes no submissions as to the circumstances in which the applicant claims the matter was deemed abandoned. However, the Minister does submit that there is nothing arising either from the decision of the Federal Magistrates Court or the Federal Court which indicates any real case of jurisdictional error on the part of the Refugee Review Tribunal.

It would be futile to reinstate the application for special leave if the special leave application was not reasonably arguable. I have considered the reasons of Justice Edmonds delivered on 20 May 2005. There are no prospects of success in demonstrating error by his Honour in the conclusions that he reached. Accordingly, it will be futile to reinstate the special leave application. The summons filed 9 August 2005 is dismissed with costs.

I thank you for your assistance, Mr Translator. The Court will now adjourn.

AT 10.41 AM THE MATTER WAS CONCLUDED