SZCJR v Minister for Immigration

[2006] FMCA 344

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCJR & ORS v MINISTER FOR IMMIGRATION [2006] FMCA 344

MIGRATION – Review of decision of RRT – where the matter had been previously adjourned – where the applicants did not attend.

Federal Magistrates Court Rules 2001, Rule 13.03A(c)
Migration Act 1958 (Cth)

Applicants: SZCJR, SZCJS, SZCJT

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 12 of 2004

Judgment of: Raphael FM

Hearing date: 3 March 2006

Date of Last Submission: 3 March 2006

Delivered at: Sydney

Delivered on: 3 March 2006

REPRESENTATION

Counsel for the Respondent: Ms K C Morgan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules

2. Applicant to pay the respondent's costs assessed in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 12 of 2004

SZCJR, SZCJS & SZCJT

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by way of an application dated

   
   

   5 January 2004.  The applicant attended a directions hearing on

   
   

   12 March 2004 and this matter was set down for hearing on

   
   

   5 December 2005. On or about 1 December 2005 there was received in this court a medical certificate on behalf of the second applicant and as a result the matter was re-listed for today.  The case was due to commence at 2:15pm but at 2:35pm the applicants, whose names were called outside the court, had not appeared. 

2. I note that the applicants did not attend the hearing before the Refugee Review Tribunal and that the Tribunal expressed the view that in their absence it was unable to be satisfied that the claims which were made constituted a well-founded fear of persecution for a Convention reason.  As the Tribunal says at CB 88:

   However, without further evidence, the Tribunal cannot be satisfied that the applicant husband's fears for himself and his family are well founded.  In order to be satisfied that the applicant's fears are well founded, the Tribunal would need to satisfy itself as to the veracity of the applicant's above claims, including the circumstances surrounding the events he claims to have suffered.  The Tribunal further would wish to have further evidence of the applicant's role in the Samajwadi Party such that this might bring him to the attention of Hindu nationalists as he claims. 

   Without further evidence the Tribunal cannot be satisfied that the applicant, a businessman living in Mumbai, has been, as he claims, implicated in an event in Gujerat.

   The Tribunal also expressed the view that it would need to have more details about the applicant's attempt to relocate in order to satisfy itself that the applicant and his family could not relocate to a less strife ridden area of India than Mumbai. 

3. I make the above remarks so that the applicant would note that, in the circumstances of the case as seen in the court book, the Tribunal's decision does not appear to be one in which a jurisdictional error has occurred.  The applicant's claims as set out in his application to this court suggest that all the relevant facts on the record have not been taken into account before making the decision.  I can see no evidence of this alleged failure.  The applicant also alleges that he falls under the definition of the term "refugee" but this is an assertion of fact and is not a matter within the court's jurisdiction.

4. The applicant asserts that the decision was mainly based on media information rather than on personal circumstances and claims.  The Tribunal clearly looked at the applicant's circumstances and claim so far as it was able to without the benefit of the applicant's own evidence.  Finally, the applicant argues that the member of the Tribunal did not follow the procedures as required by the Migration Act 1958 (Cth). He does not particularise this in any way. I propose to dismiss these proceedings pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules due to the non-attendance of the applicant. I order that the applicant pay the respondent's costs which I assess in the sum of $4000.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  10 March 2006