SZCFU v Minister for Immigration
[2005] FMCA 79
•27 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCFU v MINISTER FOR IMMIGRATION | [2005] FMCA 79 |
| MIGRATION – Visa – protection visa – where applicant did not attend the Refugee Review Tribunal hearing – no reviewable error. |
Judiciary Act 1903 (Cth), s.39B
| Applicant: | SZCFU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2810 of 2003 |
| Delivered on: | 27 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 27 January 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Radich |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2810 of 2003
| SZCFU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision by the Refugee Review Tribunal. That decision was handed down on 2 December 2003. In that decision the Refugee Review Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant. The Applicant is a citizen of India. He arrived in Australia on
23 March 2003. The Applicant applied for a protection visa on
15 April 2003. He said in his application that he had a fear of persecution by the state government of Gujarat and India. He said he is a Muslim living in Gujarat. He said that he is a Muslim and feared for his life in India. He says that since January 2002 Muslims in general are targeted, harassed, murdered and raped in Gujarat which is why he left the country. He said that he was certain that he would be killed if he returned to Gujarat in India.
A delegate of the Minister refused his application for a protection visa and so the Applicant sought a review from the Refugee Review Tribunal. On 11 September 2003 the Tribunal wrote to the Applicant. The Tribunal said this:
The Tribunal has considered the material before it in relation to your application but it is unable to make a decision in your favour on this information alone.
It was because of that that the Tribunal invited the Applicant to attend a hearing on Tuesday, 28 October 2003, at 2.30 pm. The Applicant did not attend the hearing. He told the court today some of his friends told him it was not important to attend the hearing of the Refugee Review Tribunal. That was a very serious mistake. The Applicant's friends did not give him good advice at all. It should be remembered that the Tribunal had decided that it could not make a decision favourable to the Applicant on the basis of the material that he had provided. If the Applicant had attended he would have been able to give evidence. As it was the Tribunal decided to make its decision on the basis of the material that was before it.
The Tribunal was not satisfied that the Applicant had a well founded fear of persecution in India. In its decision at page 63 and 64 of the court book the Tribunal said the short answer is that the Tribunal was not satisfied that the Applicant has made out his case. The Tribunal had independent evidence and it used that independence to determine whether there was a real chance that the Applicant would be persecuted if he returned to India. The Tribunal said that the Tribunal did not have the opportunity to test the Applicant's claims against the independent evidence at the hearing. The Tribunal noted that the Applicant did not provide details of the actions that he said he had taken back in India. On the basis of the evidence, the Tribunal was not satisfied that the Applicant had a well founded fear of persecution in India.
I have said before in cases of this nature that Applicants for a protection visa who do not attend a scheduled hearing of the Refugee Review Tribunal do themselves a grave disservice. It is the task of the Refugee Review Tribunal to consider the Applicant's case. Where the Tribunal has already indicated that it is not satisfied on the basis of the Applicant's written information, it is necessary for the Applicant to attend the Tribunal hearing so that he may give evidence in order to persuade the Tribunal that he should be granted a protection visa. Where the Applicant chose to stay away from the Tribunal, he did not give the Tribunal a chance to hear any more evidence from him.
There is nothing in the material before me to show that the Tribunal made any error in procedure. There was nothing to show that the Applicant was denied natural justice. He was given the opportunity to attend the Tribunal to give evidence on his own behalf but he chose not to attend. The Tribunal went on to make its decision based on the written evidence that was before it. Unfortunately for the Applicant, they decided against him. There is no evidence of any error made by the Tribunal. The Applicant's application filed on 18 December 2003 merely said that his grievances had not been heard by the Refugee Review Tribunal and he wanted a chance to prove his reasons for a stay in Australia.
He provided no details in his application as to why the Refugee Review Tribunal was wrong and he has not done so today. He was given the opportunity to file an amended application by 31 July. In that amended application he should have provided the details as to why he thought the Tribunal was wrong. He chose not to provide the information. There is no reviewable error. The application is dismissed.
This is a case where costs follow the event and it is an appropriate case for the Applicant to pay the Respondent's costs. I make the following orders:
i)The application is dismissed.
ii)The applicant is to pay the respondent's costs of this application in the sum of $2000.
iii)I direct that a transcript of my reasons should be provided.
iv)I remove the application from the list of cases awaiting finalisation.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 16 February 2005
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