BRGAG of 2008 v Minister for Immigration
[2008] FMCA 722
•26 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRGAG OF 2008 v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 722 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – failure to attend hearing – no reviewable error found. |
| SZGGG v MIMIA [2006] FMCA 528 Bin Xie v MIMIA [2005] FCAFC 172 SZECI v MIMIA [2005] FCA 1201 NBGZ v MIMIA [2005] FCAFC 119 SZGFG v Minister for Immigration & Citizenship [2007] FCA 483 |
| Applicant: | BRGAG of 2008 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 163 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 26 May 2008 |
| Date of Last Submission: | 26 May 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 26 May 2008 |
REPRESENTATION
| The Applicant appearing on his own behalf with the assistance of an interpreter |
| Counsel for the Respondents: | Mr Maycock |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application filed 18 March 2008 be dismissed.
That the applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 163 of 2008
| BRGAG of 2008 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
This is an application for an order that the respondent’s show cause why a remedy should not be granted in the exercise of the Court’s discretion under s.476 of the Migration Act1958 in respect of a decision of a Refugee Review Tribunal concerning the applicant.
The applicant was found by the Tribunal to be a citizen of Indonesia who arrived in Australia on 26 August, 2007. On 20 September, 2007 he applied for a Protection (class XA) visa. That application was refused by a delegate of the Minister on 16 October, 2007. It was refused on the basis that the applicant was not a person to whom Australia has protection obligations under the relevant convention.
The applicant applied to a Refugee Review Tribunal for a review of the delegate's decision on 16 November, 2007. In the application to the Tribunal he noted his address for service as being 698/226 Elizabeth Street, Surry Hills, New South Wales. It was to that address that th correspondence was sent by the Tribunal for the applicant, first of all notifying him that his application had been received and, secondly, inviting him to attend a hearing in respect of his application. The latter letter was sent on 24 December, 2007 and in compliance with the procedures set out in the Migration Act it advised the applicant that the Tribunal had considered the material before it but on the basis of that material alone it was unable to make a favourable decision for the applicant.
The respondent did not respond to the letter, nor did he appear at the hearing of the application on 29 January, 2008. On that day the Tribunal reached a decision pursuant to s.426A of the Act and handed that decision down on 19 February, 2008. The Tribunal affirmed the decision of the delegate not to grant the application the relevant visa. The Tribunal was unable to be satisfied that the relevant criteria required to be established for the grant of the relevant visa existed. The Tribunal's reasons for decision are shortly stated, but in the circumstances of this matter needed no lengthy dissertation.
The claims made by the applicant in his application for a protection visa were correctly, in my view, identified by the Tribunal. Essentially, his claim was that he is at risk of persecution from the current Indonesian government because of either his connections or those of his employers with the previous Suharto regime. He claims that in about 2001 the new government sent police to his company, they surveyed the relationship between him and the Suharto government. They thought that there was a plot to overthrow the current government in which the applicant was involved. They found no evidence of that but nonetheless imprisoned him for six months. Thereafter, upon his release he came to Australia to avoid the risk of being gaoled by the current Indonesian government.
The Tribunal was unable to be satisfied that the relevant criteria for the grant of the visa existed.
It is not the role of the Tribunal to play the part of the contradictor in the applicant's case: Graham J in SZGFG v Minister for Immigration & Citizenship [2007] FCA 483. The proceedings before the Tribunal are inquisitorial rather than adversarial and the Tribunal is obliged to be fair but it is for the applicant in each case before the Tribunal to advance a case using whatever evidence or argument the applicant wishes to and for the Tribunal to decide whether the claim is made out.
In circumstances where the Tribunal clearly indicates by correspondence that it is unable to make a favourable decision for the applicant without the necessity for a hearing and the applicant fails to attend the hearing, the conclusion to which the Tribunal can come is really only that the decision, the subject of the review, should be affirmed. It is difficult to envisage circumstances where any other result might follow.
The procedure adopted by the Tribunal was open to it in the circumstances of this case. The conditions required to be met before proceeding in the applicant's absence were all met. There was no error by the Tribunal in so proceeding: SZGGG v MIMIA [2006] FMCA 528 and Bin Xie v MIMIA [2005] FCAFC 172.
In my view this case comes squarely within the words of Allsop J of the Federal Court of Australia in SZECI v MIMIA [2005] FCA 1201 where at para.19 his Honour referred to what he has said in NBGZ v MIMIA [2005] FCAFC 119 to the effect of having sent a notice or an invitation to attend a hearing that the applicant failed to appear, a refusal of the application was inevitable.
In my view, the application before me must be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: E Crutchfield
Date: 5 June 2008
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