SZOBU & Anor v Minister for Immigration and Citizenship & Anor [2011] HCATrans 110 (28 April 2011)

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SZOBU & Anor v Minister for Immigration and Citizenship & Anor [2011] HCATrans 110 (28 April 2011)

Last Updated: 3 May 2011

[2011] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S155 of 2010

B e t w e e n -

SZOBU

First Applicant

SZOBV

Second Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 28 APRIL 2011, AT 10.07 AM

Copyright in the High Court of Australia

MR H.P.T. BEVAN: May it please the Court, I appear for the Minister. (instructed by DLA Phillips Fox Lawyers)

HER HONOUR: Thank you, Mr Bevan. It does not appear that the applicant is present in Court. I will have the Deputy Registrar call the applicant outside the Court, Mr Bevan.

COURT OFFICER: No appearance, your Honour.

HER HONOUR: Yes. I think, Mr Bevan, a submitting appearance has been filed on behalf of the second respondent.

MR BEVAN: Yes, your Honour.

HER HONOUR: Now, Mr Bevan, this is an application for reinstatement of an application for special leave to appeal. You have filed an outline of submissions opposing the relief claimed in that summons.

MR BEVAN: That is so, your Honour.

HER HONOUR: Mr Bevan, it appears that in addition to an affidavit sworn by the first applicant, SZOBU, on 24 March 2011, the first applicant has sent a letter, received in the Court’s Registry on 27 April 2011, reciting some history, some of it, as I read it, repeating the matters in paragraph 5 of the earlier affidavit to which I referred.

MR BEVAN: Yes, your Honour.

HER HONOUR: That is so?

MR BEVAN: That is my understanding.

HER HONOUR: Yes, very well. I do not think I need to hear further from you, Mr Bevan. Thank you.

MR BEVAN: Thank you, your Honour.

HER HONOUR: By summons filed on 24 March 2011, the applicants applied for an order reinstating their application for special leave to appeal. Neither of the applicants has appeared on the return of the summons. The first respondent appears and relies on the outline of submissions filed on 27 April 2011. The second respondent has filed a submitting appearance.

The application for reinstatement of the special leave application is opposed on four grounds: (1) the applicants have not provided any adequate explanation for their failure to comply with rule 41.10 of the High Court Rules 2004; (2) the applicants have not provided any explanation for the eight-month delay in making the present application; (3) the grounds set out in the application for special leave to appeal are without merit; (4) any appeal to this Court would be incompetent by reason of section 33(4)(b)(a) of the Federal Court of Australia Act 1976 (Cth).

The applicants are husband and wife. They are citizens of India. They arrived in Australia on 8 April 2009 and on 14 May 2009 they applied to the first respondent for the grant of protection visas. The applicant husband made claims to engage Australia’s protection obligations under the Refugees Convention as amended by the Refugees Protocol. The applicant wife’s claims were as a member of the first applicant’s family.

The first applicant’s claims were based on his account of having uncovered a fraud committed by his employer. That person, it was said, was an influential member of the Congress Party. It was the first applicant’s account that he had been threatened and accused of being a Fundamentalist in consequence of his revelation of the fraud. A delegate of the first respondent refused each application on 3 August 2009. The applicant sought a merits review before the Refugee Review Tribunal. That Tribunal affirmed the delegate’s decisions. It found the first applicant’s claims to lack credibility. It rejected his assertion of having been threatened or subjected to physical attack. It found that he belonged to the sizeable Hindu community in India, that he supported the mainstream BJP Party and that he had had a successful professional career. It found nothing to suggest that there exists a real chance that he would require state protection from any Convention-related harm in the future or to indicate that the authorities in India might fail to afford him protection were the need to arise. It did not accept that the first applicant suffered any Convention-related persecution or lesser harm in India.

The applicants applied for judicial review of the Tribunal’s determination to the Federal Magistrates Court. They did not attend the court on the date appointed for the hearing of their application. The first applicant sent a letter to the registry of the court attaching a medical certificate that was, in a number of respects, uninformative. Federal Magistrate Emmett understood from the tenor of that communication that the applicants were applying for an adjournment. That application was opposed. Her Honour considered the material before the court to be insufficient to satisfy her that the first applicant was unfit to appear at the hearing. In considering whether or not it was in the interests of justice to grant the adjournment sought, she took into account the utility of making such an order. Her consideration of the grounds of appeal filed by the applicants led her to conclude that none had any reasonable prospect of establishing that the decision of the Tribunal was affected by jurisdictional error.

The application was dismissed with costs pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 for want of appearance by the applicants. The applicants were notified of the making of that order and of the provisions of rule 16.05 of the Magistrates Court Rules. Relevantly, that rule provides that the court may vary or set aside its judgment or order before or after the entry of the order in circumstances, including that the order is made in the absence of a party.

The applicants purported to appeal to the Federal Court from Federal Magistrate Emmett’s order. On 7 June 2010, Justice Flick dismissed the notice of appeal as incompetent. His Honour noted in this respect that the order, the subject of purported appeal, was interlocutory and that leave was required for an appeal and that no leave had been sought. His Honour concluded after a review of the purported grounds of appeal that neither those grounds, nor those that had been advanced before Federal Magistrate Emmett had any prospect of success. His Honour concluded that the exercise of Federal Magistrate Emmett’s discretion had not miscarried and that her rejection of the proposed grounds of challenge to the Tribunal’s determination was “clearly correct”.

On 21 June 2010, the applicants filed an application for special leave to appeal from the orders of Justice Flick. On 19 July 2010, the application was taken to be abandoned pursuant to rule 41.10.4.1 of the High Court Rules 2004. An application is taken to be abandoned in accordance with that rule if an unrepresented applicant fails to comply with the requirements of subrule 10.3(c) to file the written case and draft notice of appeal.

The applicant filed an affidavit on 24 March 2011 in support of the relief claimed in the summons. No explanation is offered in the affidavit for the delay between 19 July 2010 and the date of the filing of the summons. The explanation for the antecedent failure to comply with the provisions of rule 41 is that the applicant was not aware of the provisions of that rule.

On 27 April 2011, a handwritten document transmitted by facsimile was received by the Registry. That document sets out matters of history respecting the proceedings before the Federal Magistrate and contains an account of the first applicant’s assertions relating to events in India giving rise to his claim. It appears to be signed by the first applicant. The factual matters substantially repeat the assertions set out in the penultimate paragraph of the affidavit to which I have referred.

The applicants’ proposed grounds of appeal comprise an unparticularised assertion of the denial of procedural fairness (ground 2) and challenges to the Tribunal’s factual findings (grounds 1 and 4). The grounds contain an error in their numbering. There is no ground 3. The grounds are wholly lacking in merit and do not identify any error in the reasons of the court below. The application should be refused for the reasons identified as the second, third and fourth grounds of opposition to an order reinstating the application.

For these reasons, I make the following order: the summons filed on 24 March 2011 is dismissed with costs.

I will adjourn.

AT 10.23 AM THE MATTER WAS CONCLUDED