SZFFC v Minister for Immigration
[2005] FMCA 671
•5 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFFC v MINISTER FOR IMMIGRATION | [2005] FMCA 671 |
| MIGRATION – Visa – protection visa application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Indonesia – where applicant did not attend RRT hearing – no reviewable error. |
| Migration Act 1958 (Cth) |
| Applicant: | SZFFC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3603 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 May 2005 |
| Date of Last Submission: | 5 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Bird |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3603 of 2004
| SZFFC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 19 October 2004. The decision was handed down on 10 November 2004. 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 Indonesia. He arrived in Australia on 22 March 2004. He lodged an application for a protection visa on 21 April 2004.
In that application he claimed a well founded fear of persecution. This was based on the fact that whilst he is an ethnic Indonesian he says that he resembles an ethnic Chinese Indonesian. He and his family are friendly with ethnic Chinese Indonesians. As a result he says that he has faced persecution from native Indonesians who mistakenly believe that he is ethnic Chinese.
A delegate for the Minister for Immigration refused his application for a protection visa on 22 April 2004. On 24 May of that year he applied to the Refugee Review Tribunal for a review of that decision.
The Tribunal wrote to him on 21 July 2004. The Tribunal said it had considered all the material before it relating to his application.
The Tribunal said that it was not able to make a favourable decision to him just on that information. The Tribunal invited him to attend a hearing which was scheduled for 18 October 2004. The applicant did not attend the hearing. Unfortunately he had made a mistake about the date. The date of the hearing had previously been changed.
The applicant told the Court that he did not realise that he had missed the hearing until it was too late. It was not until after the hearing that the applicant realised that he had missed it.
On 10 December 2004 he applied to the Federal Magistrates Court for review of that decision. The applicant says that the Tribunal did not consider the material which was in his favour. He said that he is a refugee with a genuine fear of persecution. He set out in his application a summary of his case. The applicant had worked at a hotel in Djakarta which had been looted and damaged in violence.
He reiterated his claim that he resembles an ethnic Chinese person even though he is not one.
It is not the function of a Court conducting a judicial review to conduct its own examination of the facts. The task of the Court is to see whether the Tribunal has made a jurisdictional error. I have examined the decision and supporting documents. There is no evidence of any jurisdictional error. The Tribunal quite properly invited the applicant to attend the hearing. The applicant did not attend the hearing without informing the Tribunal. I am satisfied that this is no fault of the Tribunal. The Tribunal proceeded to decide the case in the absence of the applicant. The Tribunal considered the evidence that it had, but this evidence was very vague. It is hardly surprising that the Tribunal did not make a decision in favour of the applicant. Perhaps if the applicant had attended the Tribunal he may have been able to provide further information; unfortunately that is not the case.
The Court has no power to send the matter back to the Refugee Review Tribunal unless there is evidence that the Tribunal has made an error. There is no reviewable error, the application will be dismissed.
In my view this is an appropriate matter for an order for costs. The amount sought is within the scale of costs provided by the Court. The applicant is to pay the respondent's costs fixed in the sum of $2500.
The application is removed from the list of cases awaiting finalisation.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 16 May 2005
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