SZCJO v Minister for Immigration & - [2005] FMCA 1345

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCJO v MINISTER FOR IMMIGRATION &
ANOR (No.2)

[2005] FMCA 1345

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India – applicant failing to attend RRT hearing – RRT entitled to proceed in his absence – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.425, 425A, 426A

SZCJO v Minister for Immigration [2004] FMCA 996

Applicant:

SZCJO

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 9 of 2004

Judgment of:

Driver FM

Hearing date:

15 September 2005

Delivered at:

Sydney

Delivered on:

15 September 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr C Mantziaris

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal be joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
The Court notes that order 3 is made in addition to the interlocutory costs order made on 8 November 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 9 of 2004

SZCJO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was made on 12 November 2003 and handed down on 4 December 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims that appear to include religious and political and possibly particular social group elements. His primary claim appears to have been a fear of harm at the hands of Hindu extremists. The background facts are set out in the Minister's written submissions. I adopt paragraphs 2-4 of those submissions as background:
The applicant is a citizen of the Republic of India who arrived in Australia on a visitor visa on 21 April 2003: court book, page 31.
He lodged an application for a protection visa (class XA) on 19 May 2003: court book, page 1.
The Minister’s delegate refused the application for a protection visa on 2 June 2003: court book, page 34. The RRT handed down its decision affirming the decision of the Minister’s delegate on 4 December 2003: court book, page 77.
The RRT affirmed the decision of the delegate on the basis that it could not be satisfied on the material before it that the facts asserted by the applicant were true and hence could not be satisfied that the applicant had a well founded fear of persecution. The presiding member recognised[1] that the applicant's claims were complex and found that the details of those claims would have needed to be explored with him in order for the presiding member to be able to achieve the degree of satisfaction required for the grant of a visa. The presiding member was unable to attain that degree of satisfaction on the material before him.
[1] court book, page 82
The applicant did not attend a hearing before the RRT. At page 81 of the court book the presiding member says the following:
On 10 September 2003, the Tribunal wrote to the Applicant advising that it had considered the material before it relating to his application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 October 2003. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. On 24 October 2003, the Applicant advised the Tribunal in writing that he would attend the hearing. The Applicant did not appear before the Tribunal on the day, and at the time and place at which he was scheduled to attend, and has not contacted the Tribunal. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
It is apparent from the decision that the applicant's decision not to attend a hearing before the RRT, having previously indicated that he would attend, was fatal to the success of his review application.
These proceedings began with an application for judicial review filed on 5 January 2004. A directions hearing was conducted before Registrar Tesoriero on 12 March 2004. The applicant attended in person assisted by the same interpreter who is assisting him today.

I note that, according to the bench sheet, on that occasion interpretation was provided in the Urdu language. Today, interpretation was provided in the Hindi language. It appears from the court book that the applicant speaks and writes both languages. The applicant consented to a number of orders including an order requiring him to file and serve an amended application.
On 1 November 2004 the applicant filed a document headed, “Additional Grounds”. This was an attempt by him to comply with the Registrar's order for an amended application. The attempt was ineffective because it simply took issue with the merits of the RRT decision. At the instigation of the Minister this matter came before me in a non-compliance list on 8 November 2004. I made orders for an amended application to be filed by 22 November 2004. The applicant did file an amended application on 15 November 2004. The Minister was dissatisfied with it and sought further interlocutory relief pursuant to the orders that I had made on 8 November 2004. I dealt with that application in chambers and gave written reasons: SZCJO v Minister for Immigration [2004] FMCA 996. Relevantly, I struck out ground 2 of the amended application as disclosing no reasonable cause of action. I found that the ground was meaningless in the absence of particulars. I considered that the amended application provided sufficient grounds for a final hearing by reference to grounds 1 and 3 in it. I explored those grounds with the applicant at the hearing today. He explained that the amended application was prepared by a lawyer who was at the time assisting him.
The third ground is, in my view, merely an attack on the RRT’s finding on page 82 of the court book that, on the material before it, the RRT could not be satisfied that the claimed attack on the applicant's father's business did occur, that the applicant had been subject to personal threats or that he had a well-founded fear of persecution within the meaning of the Convention. I find that this is a dispute merely with the merits of the RRT decision. The finding by the RRT that it was not satisfied was open to it on the material before it. No jurisdictional error arises.
The remaining ground is the first ground in the amended application. That ground is that the RRT failed to consider the applicant's case in the light of the Refugees Convention and the RRT was influenced significantly about the applicant's non-attendance at a hearing. The first assertion is incorrect. The RRT did consider the applicant's claims by reference to the Refugees Convention. The second assertion is correct in that the RRT was influenced significantly by the applicant's non-attendance at the hearing. Pursuant to s.426A of the Migration Act, the RRT was permitted but not required to proceed in the absence of the applicant. The letter sent to him on 14 October 2003 (court book, pages 70 and 71) complied with the RRT’s obligation under s.425 of the Migration Act. The applicant had responded accepting the invitation (court book page 73).
The applicant told me today from the bar table that he did not attend the hearing before the RRT as he was afraid following advice he received from a friend that the Minister's Department would use the opportunity to detain him and deport him from Australia. That was very poor advice because the applicant was not at the time an illegal immigrant as he held a bridging visa. He drew nothing to the attention of the RRT that gave the RRT any reason to believe that there might be a problem. In the circumstances, notwithstanding the reason for the applicant's non‑attendance, there was no jurisdictional error in the RRT proceeding in his absence.
There is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,000. This takes into account the Minister's actual costs in excess of $6,000 and an interlocutory costs order made by me fixed in the sum of $200. I agree that the amount of costs sought is appropriate. The applicant indicated no dispute with the costs sought. Indeed, he said he would pay it.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,000. For the sake of clarity, I note that this costs order is in addition to and not in substitution of the interlocutory costs order made by me on 8 November 2004.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 September 2005