SZEBF v Minister for Immigration
[2004] FMCA 811
•10 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEBF v MINISTER FOR IMMIGRATION | [2004] FMCA 811 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – notice of objection to competency – notice of objection to competency upheld – dismissal of application. |
Migration Act 1958 (Cth), s.424, 425(3), 441(C)(4), 474, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195
| Applicants: | SZEBF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2358 of 2004 |
| Delivered on: | 10 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
No appearance by or on behalf of the applicant.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2358 of 2004
| SZEBF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This ex tempore judgment relates to a Notice of Objection to Competency filed on 1 September 2004, where the respondent moves the Court for orders that these proceedings be summarily dismissed on the following grounds:
a)The Court has no jurisdiction to review the decision made by the Refugee Review Tribunal (“the Tribunal decision”) on 27 April 2004 as subsection 477(1A) of the Migration Act 1958 provides that an application to the Federal Magistrates Court under section 39B of the Judiciary Act 1903 and section 483A of the Migration Act 1958 must be made within 28 days of the notification of the Tribunal’s decision.
b)The applicant has not identified any other decision that is sought to be reviewed.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 filed in the Sydney Registry of the Federal Magistrates Court of Australia on 26 July 2004. The respondent tendered and applied on an affidavit of Jonathan Willoughy-Thomas sworn on 9 November 2004 (“the affidavit of Mr Willoughby-Thomas”) to be admitted to evidence. A Court Book (“CB”) was filed on 30 August 2004.
Background
On 19 May 2004 the Refugee Review Tribunal (“the Tribunal”) handed down a decision affirming the decision of the respondent to refuse to grant the applicant a protection visa.
The applicant, who claims to be a citizen of Indonesia, arrived in Australia on 31 December 2003. On 8 January 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (“the Act”). On 9 January 2004 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant a protection visa and on 3 February 2004 the applicant filed for a review of the delegate’s decision.
On 23 March 2004 the Tribunal wrote to the applicant pursuant to s.424 of the Act seeking further information from the applicant concerning his claims (CB pp.38-39). The Tribunal records that no response was received (CB p.51 [9]). As the Tribunal notes, in those circumstances, it can proceed to make a decision without taking further action to obtain the information (CB p.53 [6]) and without holding a hearing: see ss.424C(1) and 425(3) of the Act.
The applicant claimed to fear persecution in Indonesia for reason of his religion. He claimed to have been involved in a fight in Jakarta and to fear reprisals from those involved after going to the police (CB p.18). The Tribunal noted that the applicant’s claims were very general, his assertion that he feared harm in Indonesia for reason of his Moslem religion was contrary to independent country information, and concluded that his fears were not well founded. This is a factual conclusion that was open to the Tribunal for the reasons it gives.
The present application
The present application was filed in the Court on 26 July 2004. It contains two grounds, none of which are particularised. It contains loosely formulated allegations of breach of procedures, denial of natural justice and jurisdictional error. The applicant’s grounds are as stated:
1.The Second Respondent committed jurisdictional error of law by misinterpreting the definition of “persecution” set out in s91R of the Migration Act 1958, and as a result asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the Applicant.
2.Pursuant to s424 of the Act, The Second Respondent proceeded to make a decision based on the material before it. The Applicant did not receive a s.424 letter.
The applicant does not properly particularise any error in the Tribunal’s decision. A claim is made (without evidence) that the applicant did not receive the Tribunal’s s.424 letter, despite it being sent to the applicant’s residential address by registered post. Even if the applicant did not in fact receive the letter, he is deemed to have received it pursuant to s.441C(4) of the Act.
Submissions
Mr Reilly appeared for the respondent, filed written submissions and made oral submissions. It was submitted that the present application was lodged out of time. As the application was lodged outside of the time limited permitted by s.477(1A) of the Act, it was therefore incompetent: see SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431, SZBML v Minister for Immigration & Multicultural & Indigenous Affairs) [2004] FCA 1195.
The Tribunal stated in its findings that:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well founded’ or that ‘it is for the reasons claimed’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to a ministry of enquiries and decision making, the relevant facts of the individual case will be supplied by the applicant himself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. (MIEA v Guo & Ors (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The applicant did not provide additional information as requested in the Tribunal’s letter of 23 March or attend a hearing and this leads the Tribunal with claims which are, at best, stated in the most general terms. The information that the applicant has provided does not indicate how the mistreatment claimed to be suffered and the harm feared by the applicant is for one of the reasons set out in the Convention.
The Tribunal, with only the original application of the applicant, unsupported by any further written or oral information could not accept the credit of the applicant’s claims.”
It was submitted that, as there was no jurisdictional error in the Tribunal’s decision, it follows that it is a “privative clause decision” within s.474 of the Act. It was also submitted that the respondent’s Notice of Objection to Competency should be upheld and the application dismissed with costs.
Conclusion
I accept the submissions made by the respondent in this Notice of Objection to Competency and find that the application should be dismissed summarily pursuant to Order 13.10 of the Federal Magistrates Court Rules, with costs.
I certify that the twelve (12) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 10 November 2004
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