SZDKT v Minister for Immigration - [2004] FMCA 986

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKT v MINISTER FOR IMMIGRATION

[2004] FMCA 986

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the applicant a protection visa – applicant claims a well-founded fear of persecution because of his homosexuality – applicant a citizen of India – where the applicant did not appear before the Refugee Review Tribunal – where the applicant did receive legal advice – where applicant did not comply with direction to file an amended application – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425, 475A

Applicant:

SZDKT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1237 of 2004

Delivered on:

1 December 2004

Delivered at:

Sydney South

Hearing date:

1 December 2004

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Wigney

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs of this application in the sum of $4,250.00.
Transcript of reasons for decision required.
The Application is removed from the List of Cases Awaiting Finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1237 of 2004

SZDKT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision by the Refugee Review Tribunal. The decision was made on 4 March 2004 and it was handed down on 25 March 2004. On 21 April 2004 the Applicant filed his application at the Federal Magistrates Court. He asks the Court to review the decision of the Refugee Review Tribunal. The Refugee Review Tribunal had affirmed a decision by a delegate of the Minister to refuse the Applicant a protection visa.

Background

The Applicant is a citizen of India. He travelled to Australia in 2002. On 30 December 2002 he submitted an application for a protection visa. He says in that application that he was born on 16 April 1977. He arrived in Australia on 19 December 2002. He arrived in with an Indian passport which had been issued on 9 April 2002. It appears that he entered Australia legally with a valid passport. The Applicant says that he left India because he was persecuted. He says he was persecuted physically, psychologically and economically. He says this persecution came from the community as well as from the police. He says the reason why he was persecuted is because he is a homosexual. He said that he formed a relationship with a school friend called Dalipe. When they left school they started living together. He said that the word got around in the community that he and his friend were living in a homosexual relationship. The shopkeeper stopped selling things to them and eventually they were beaten up by a group of three men. They went to the police but the police were very unhelpful. The Applicant says that when the police found out they were homosexuals the police beat them.
In December of 2002 the Applicant decided to leave India. He obtained a passport and a visa. He entered Australia on 19th December. He applied for a protection visa soon thereafter. On 8th July 2003 his application for a protection visa was refused. With the aid of a migration agent the Applicant applied to the Refugee Review Tribunal. The application to go before the Refugee Review Tribunal was received on 5th August. On that date the Tribunal wrote to the Applicant. In the letter the Tribunal set out what they would expect the Applicant to do. The letter told the Applicant that the Tribunal member would look at the information in his file. The letter said that after looking at the file the member would either make a decision in his favour or if not satisfied about the material, invite him to attend a hearing at the Tribunal.
On 21st October 2003 the Tribunal wrote to the Applicant. In the Tribunal's letter the Tribunal told the Applicant that a Refugee Review Tribunal hearing would take place on Thursday, 20th November 2003. The hearing was timed for 2 pm. The Applicant did not attend the hearing at 2 pm. He arrived very late. He says he arrived 35 minutes late, he said that there was a train delay. By the time the Applicant arrived the hearing was over. He told the Court that everyone had gone. He lodged an application for review at this Court. The Tribunal had made a decision and the Tribunal had affirmed that he should be refused a protection visa because the Applicant did not provide the Tribunal with any further information and because he did not attend to give evidence. The Tribunal said at page 71 of the Court Book:
The Applicant was put on notice that the Tribunal was unable to make a favourable decision on the information before it. He did not provide any further information to support his claims nor did he give the Tribunal the opportunity to explore relevant aspects of his claims with him. Without further information from the Applicant I am not satisfied that he is a practicing homosexual.
The Tribunal was not satisfied about other aspects of the Applicant's case. The Tribunal said at page 72:
Without further information from the Applicant I am not satisfied that his claims are genuine or that his claims are Convention related.
In his application to this Court for a review of the Tribunal's decision, the Applicant says this:
I was persecuted in my country because I am a homosexual. This is a social group which is persecuted both by authorities and society.
The Applicant provides no other information.
The application came before a Registrar of the Court at 2.15 pm on 24th August 2004. A Mr Salim appeared for the Respondent. The Registrar noted on the papers that the Applicant did not appear. The Registrar noted that the Applicant:
Came late after matter adjourned. By 3 pm solicitor for Minister had already left.
The Registrar directed that the Applicant should file and serve an amended application. This amended application should give full particulars of each ground relied on. The amended application was supposed to be filed by 12th October. The Applicant has not filed any further documents. He did have the benefit of some legal advice through the pilot scheme. He had a conference with one C L V Hooten, a barrister who was on the panel. He appears to have had no other legal advice. The Applicant told the Court that he believed that he could produce fresh evidence at this hearing. That advice is incorrect. The question of fact is decided by the Refugee Review Tribunal, not by the Court. An application for review in the Federal Magistrates Court is not a rehearing of the original case. A review conducted by the Court is just that, it reviews the way in which the Tribunal reached its decision. As the Applicant did not attend the hearing of the Refugee Review Tribunal he was not able to give any evidence to that Tribunal. Regrettably, he has missed his opportunity to give evidence. He indicated that he still seeks to obtain more documents from India. He does not know how long they will take. The Applicant's application does not set out anything to show why the decision of the Refugee Review Tribunal was unfair or biased. All the Applicant says is that he believed the Tribunal arrived at the wrong decision.
The Tribunal relied on the information that it already had. That information was not sufficient to satisfy the Tribunal that it could make a decision in the Applicant's favour. That is why the Tribunal decided to hold a hearing on Thursday 20th November. In their letter of 21st October the Tribunal told all this to the Applicant. Despite this, the Applicant arrived so late at the hearing that the matter was over before he had arrived. I see nothing in the Court Book that indicates the Tribunal fell into any error of jurisdiction, there is nothing to indicate that the Tribunal dealt with this Applicant unfairly or acted in a biased way. It is hardly surprising that the Tribunal returned an unfavourable decision when the Applicant had not attended.
There is no reviewable error. I regret to say that this is an application without any merit. The application is dismissed.
It is an application for costs. The Applicant has been wholly unsuccessful. He says that he cannot afford to pay the amount sought. It appears to me that he has very little funds and the evidence indicates that he only works on a part time or casual basis. Nevertheless, that is not a ground for refusing an order for costs.
Where a party has been wholly unsuccessful, costs will follow. To my mind this is an application which has been conducted in a standard sort of way. I would hesitate to describe it as a standard sort of application in that, as I said, it is one without any merit at all. To my mind, a costs order in the sum of $4250 is well within the range prescribed by the Court Rules. I make the orders accordingly.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 16 December 2004