SZBYF v Minister for Immigration
[2005] FMCA 1924
•22 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBYF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1924 |
| MIGRATION – Review of Refugee Review Tribunal decision –refusal of a protection visa – application fearing refoulement from Thailand to Laos – no appearance of applicant at hearing of her judicial review application – dismissal for non appearance – serious issue to be tried if the applicant were to satisfactorily explain her non appearance. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | SZBYF |
First Respondent: : | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2512 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 22 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2005 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,875.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2512 of 2003
| SZBYF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 11 November 2003. The RRT affirmed a decision of a delegate of the minister not to grant the applicant a protection visa. The applicant came to Australia from Thailand but before the RRT claimed to Laotian, although she had lived in Thailand all her life. The background facts and circumstances are set out in paragraphs 3-16 of the Minister's written submissions which I adopt as background for the purposes of this judgment:
The applicant was born in Ubon, Ratchathani, Thailand on 17 March 1967 and claimed to be a citizen of Laos: court book, pages 1-2. She arrived in Australia on a Thai passport as a visitor on 31 July 2002: court book, page 3.
On 13 August 2002, the applicant made an application for a protection visa to the Minister for Immigration and Multicultural and Indigenous Affairs (“MIMIA”): court book, page 1. On 12 September 2002, the Minister’s delegate refused to grant the applicant a protection visa: court book, page 37.
On 6 October 2002, the RRT received an application for review of the decision of the Minister’s delegate: court book, page 45.
On 17 September 2003, the RRT invited the applicant to a hearing, and informed the applicant that the RRT had “considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”: court book, page 56.
On 9 October 2003, the RRT received a Response to Hearing Invitation from the applicant, indicating that the applicant did not want to come to a hearing, and consented to the RRT “proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it”: court book, page 60.
On 11 November 2003, the RRT sent a letter to the applicant, notifying the applicant of the RRT’s decision to affirm the decision of the Minister’s delegate: court book, page 63.
On 20 November 2003, the applicant filed an application in this Court for review of the RRT’s decision. On 16 July 2004, the applicant filed an amended application for review (the “Amended Application”).
The applicant’s claims
The applicant claims to have a well-founded fear of persecution arising from her status as a Laotian refugee living in Thailand. In her original application, the applicant makes the following claims (court book, pages 28-29):
a)the applicant’s parents fled to Thailand in the Second Indochina war in the early 1960’s;
b)the applicant was born in Thailand near the Laos border and has been living in Thailand for over thirty years;
c)the applicant’s father was an ex-soldier who had fought against the communist party. Two of the applicant’s uncles were forced back to Laos in the early 1990’s. They were both persecuted and died in jail;
d)the Thai government is toughening its policy on Laotian refugees and will force the applicant to return to Laos.
The applicant claims that if she is forced to return to Laos, she will be punished and will face charges by the Lao government as a result of her father’s anti-communist activities: court book, pages 28-29.
The RRT’s decision
After reviewing the legal principles applicable to determining the applicant’s claims, the RRT reviewed the evidence provided by the applicant in support of her claims and relevant country information: court book, pages 68-71.
The RRT stated that the applicant was “very vague and contradictory about biographical details”, and claimed no familiarity with Laos: court book, page 69. The RRT then found a number of inconsistencies both within the information provided by the applicant, and between the applicant’s claims and the independent country information: court book, pages 69-70.
The RRT concluded that it “cannot see any reason to doubt the genuineness of the applicant’s passport” and that it was persuaded to conclude that the applicant is and always was a Thai national: court book, page 71. The RRT further stated that the applicant’s evidence to the contrary was “vague, contradictory and inconsistent, both internally and with independent historical information”: court book, pages 71.
Having concluded that the applicant was indeed a Thai national, the RRT held that it did not need to examine the applicant’s prospects of being deported from Thailand any further: court book, page 71. If it was the case that the applicant was from Laos with no citizenship rights in Thailand, then the RRT concluded that the repatriation of the applicant to Laos would not constitute Convention-related persecution by the government of Thailand: court book, pages 71-72. The RRT further concluded that there was also not enough evidence to suggest that the applicant faced any form of Convention-related persecution in Laos: court book, page 72.
The RRT was not satisfied that the applicant faced a real chance of Convention-related persecution in Thailand or in Laos and affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant: court book, page 72.
The applicant has not appeared for the hearing of her judicial review application today. Her reasons for non appearance are purportedly explained in a facsimile from a Mr Clive Wilson, a friend of the applicant, to the solicitor for the Minister on 15 December, 2005. Mr Wilson also appeared in court and I invited him to speak to me from the bar table. He confirmed the substance of his facsimile to the Minister's solicitors. Essentially, the applicant has decided that she will not appear following her inability to obtain legal representation. She has formed the view that her judicial review application is unlikely to succeed and is, in the circumstances, resigned to a dismissal of her application with costs. Nevertheless, she has not discontinued her application.
In my view, the view formed by the applicant is misguided. Her judicial review application asserts a want of procedural fairness, although the particulars given are not very helpful. On my reading of the RRT decision and reasons there would have been a serious issue to be tried if the applicant had appeared. That issue is whether the RRT decision is invalid by reason of apprehended bias. What concerns me about the decision is that the presiding member appears to have based the outcome, substantially if not wholly, upon his own views without further enquiry.
The presiding member states on page 5 of his reasons (court book, page 68) that he has about 20 years experience dealing with Indo Chinese refugees, including the lowland and highland Laos, and provides an understanding of the background of the applicant's claims. The presiding member then refers to a book which he apparently co‑authored some 13 years before the RRT hearing. Under the heading, “Findings and Reasons” the presiding member states that the applicant's claims are inconsistent with what he describes as “independent historical information”. It seems to me that that information is in fact the book which the presiding member co‑authored. It is in my view a misnomer to describe information as independent if the source of the information is the presiding member himself.
In those circumstances I would have little difficulty in finding that there was a serious issue to be tried if at some future time the applicant was able to provide a sufficient explanation for her non appearance in court. That said, the content of the facsimile from Mr Wilson, which I have accepted as an exhibit, leaves me somewhat doubtful that the applicant would be able to advance a sufficient explanation for her non appearance.
The result is somewhat unsatisfactory to my mind but I am persuaded in the circumstances that I should dismiss the application with costs on account of the non appearance of the applicant. I will order that the application is dismissed, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth); and the applicant is to pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,875. That is the Minister's assessment which I have accepted as fair and reasonable on a party and party basis.
I will arrange to have the orders made today entered and sent to the parties by post to their respective addresses for service.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 December 2005
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