SZAXE v Minister for Immigration - [2004] FMCA 397

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXE v MINISTER FOR IMMIGRATION

[2004] FMCA 397

MIGRATION – Visa – protection visa – Refugee Review Tribunal – review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – where the applicant did not attend the Refugee Review Tribunal hearing – no reviewable error.

PRACTICE AND PROCEDURE – Adjournment refused – applicant’s solicitor withdraws.

Migration Act 1958 (Cth), ss.417, 425

Applicant:

SZAXE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1218 of 2003

Delivered on:

27 May 2004

Delivered at:

Sydney

Hearing date:

27 May 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $4,000.00.
I allow six (6) months to pay.
Transcript of my reasons required.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1218 of 2003

SZAXE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the court is an application to review a decision of the Refugee Review Tribunal made on 16 February 1998. The decision of the Tribunal was a decision to affirm the decision of a Delegate of the respondent Minister not to grant a protection visa to the applicant.
The facts are that the applicant has been a citizen of Fiji and arrived in Australia from that country on 13 October 1996 on a visitor's visa. On 3 September 1997 he applied for a protection visa in which he claimed that he feared persecution for the reasons of race, religion and ethnic background. That application was refused by a delegate of the Minister on 13 October 1997.
The delegate took the view that the alleged harm that could be suffered by the applicant was not serious enough to constitute persecution. The applicant disagreed with that decision and made an application to the Refugee Review Tribunal to review that decision. That application was made on 14 November 1997. The Refugee Review Tribunal invited the applicant to attend a hearing before the Tribunal.
The applicant however advised the Tribunal on 12 February 1998 that he did not wish to avail himself of the invitation to attend the hearing. Accordingly the hearing proceeded on the 16th of that month and the Tribunal affirmed the decision of the Delegate not to grant a protection visa. Since then the applicant has made an application to have that decision reviewed.
The application that was made under section 39B of the Judiciary Act was made and filed on 1 July 2003. At that stage one Michael Jones, solicitor, was acting for the applicant. The matter was listed for hearing today but by that stage the applicant was no longer represented by Mr Jones. Mr Jones advised the court that he wished to withdraw from the proceedings and that he had notified the applicant on 13 May.
On 17 May the applicant's former solicitor filed a notice of change of address for service signed by the applicant indicating that the applicant's address for service at his current home address. The applicant has not been represented by a lawyer today and in fact applied for an adjournment of these proceedings so that he may obtain other legal advice.
The application is opposed by the respondent and I refused to grant the adjournment. I noted that the decision which is subject to an application for review was made on 16 February 1998, a little over six years ago. The applicant therefore proceeded after a short adjournment with his claim although he did reiterate the application for an adjournment but I again declined to adjourn the matter.
The grounds of the application given back on 1 July 2003 were that the Tribunal failed to consider whether the applicant had suffered persecution on the basis of membership of a particular social group being a self employed small business person from a racial and religious minority. There's certainly been material provided to the Refugee Review Tribunal to the effect that the applicant has had difficulty first as an employee and then as a self employed small businessman.
The Tribunal considered the written material that had been submitted on the applicant's behalf. However, the Tribunal did not accept that the applicant had established the degree of persecution he would suffer if he returned to Fiji. The Tribunal noted that the applicant's claim is made, in general, apart from the fact that he was not paid by almost all of his ethnic Fijian clients that he was harassed by the authorities when he tried to obtain payment from these people, that his house was stoned and that he was threatened on the way to his temple.
The applicant had said submissions would be made by his solicitor but no submissions were received by the Tribunal. The Tribunal also noted the applicant did not avail himself of the opportunity to attend the oral hearing at his decision. The applicant said today that he did not attend because he was advised by the solicitor then acting for him that the Tribunal would refuse his application anyway and it was a waste of time attending.
The Tribunal member has pointed out that the Tribunal had before it only the information contained in the written material from which to make a determination. The applicant had been put on notice by the Tribunal that it was unable to make a favourable decision on the information before it, that the applicant had not provided any further information in support of his claim despite ample opportunity to do so.
The situation then was that the Tribunal finding itself unable to make a favourable decision on the basis of the written material was obliged to proceed to a review without benefit of any further material, indeed, without the benefit of the applicant either giving evidence before the tribunal or making any submissions. It should be made clear that under section 425 of the Migration Act that a Refugee Review Tribunal invites an applicant to attend a hearing and holds a hearing when the Tribunal is unable to make a decision favourable to the applicant on the written material before it.
In this case the Tribunal had nothing before it other than the written material which it had already found to be insufficient to make a favourable decision. In the circumstances the Tribunal had to my mind no option but to affirm the previous decision to refuse the applicant's application for a protection visa.
The applicant's situation is that he is married to an Australian citizen and has been so married for some five years. He could, as he said, apply for a spouse visa but that would require him to leave Australia. If he were to do that he could return to his country of origin, Fiji, where he says he still fears persecution.
The other option would be for him to leave Australia and go to another country. He says he realises the law requires that but it would appear to him to be pointless to leave Australia when he could be living in Australia earning money and paying tax to the Australian Government. He would also be in a position to continue caring for his wife who is somewhat older than he is and suffers a degree of sickness which would cause some hardship to her if he were not around to assist her.
It is possible, as Mr Lloyd of counsel has submitted, that the applicant may be eligible to make an application on humanitarian grounds to the Minister as set out in section 417 of the Migration Act. Of course, there can be no guarantee of that but that is a matter that the applicant may wish to pursue. He should certainly seek advice from a migration agent or from a lawyer who practises in this jurisdiction.
I am certainly of the view that on the material before me no reviewable error on the part of the Tribunal has been found and I am obliged to dismiss the application. I order therefore that the application is dismissed and I require a transcript of my reasons. I note that the respondents seek an order for costs on the basis of this application. I must decide whether or not an order for costs should be made before deciding on an amount although I note that the respondent seeks some $4000.
Costs follow the event normally and financial hardship in this jurisdiction is not usually a reason for not making an order for costs. I note that costs are not sought on an indemnity basis but on a party and party basis and I propose to make the costs order.
The applicant is to pay the respondent's costs in the sum of $4000 which is a fixed sum. In the circumstances, noting the financial hardship suffered by the applicant and his wife who is a sick woman, I am prepared to extend the time to pay that I would otherwise do. So I am prepared to allow six months to pay the costs and as I said I require a transcript of my reasons for this decision.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 22 June 2004