SZFHL v Minister for Immigration

[2005] FMCA 1268

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFHL v MINISTER FOR IMMIGRATION [2005] FMCA 1268

MIGRATION – Visa – protection visa – Refugee Review Tribunal application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of Indonesia – where Applicant did not attend the RRT hearing – a shortage of funds is not sufficient to warrant not making an order for costs.

Migration Act 1958 (Cth), ss.426A; 474
Federal Magistrates Court Rules 2001

Applicant: SZFHL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3707 of 2004

Judgment of: Scarlett FM

Hearing date: 15 August 2005

Date of Last Submission: 15 August 2005

Delivered at: Sydney

Delivered on: 15 August 2005

REPRESENTATION

The Applicant: Appeared in person

Solicitors for the Respondent: Mr Bird
Phillips Fox

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the Respondent’s costs fixed in the sum of $3,900.00 and I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3707 of 2004

SZFHL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was made on 28 October 2004.  It was handed down on 18 November 2004. 

2. The applicant is a citizen of Indonesia.  He arrived in Australia on

   
   

   17 April 2004.  On 12 May of that year he lodged an application for a protection visa.  On the 29th of that month a delegate of the Minister refused to grant his application for a visa.  One month later, on

   
   

   29 June 2004, he applied to the Refugee Review Tribunal for a review of that decision.  The applicant is Indonesian and of Chinese ethnicity.  He obtained an Indonesian passport in July of 2003.  He arrived in Australia on a visitor's visa on 17 April 2004. 

3. The applicant applied for a protection visa because he claimed a well‑founded fear of persecution because of his Chinese ethnicity. 

   
   

   He said that he has been robbed, assaulted and threatened by native Indonesians who are known as "pribumi".  He owned a vegetable shop for a number of years.  In ethnic riots in Indonesia in 1998 his house was burnt and his shop was looted.  He said that his wife's sister had been raped.  Because of these things and his fear that they could happen again he decided to come to Australia and seek a visa. 

4. The Refugee Review Tribunal was not satisfied on the basis of the material provided by the applicant that it was prepared to grant his application.  For that reason the Refugee Review Tribunal asked the applicant to attend a hearing which was to take place on

   
   

   Tuesday, 26 October 2004.  The Tribunal had previously set out in a letter to the applicant dated 29 June 2004 how important a hearing was.  In that letter the Tribunal said:

   A hearing is your opportunity to give the Tribunal evidence to support your application.  Evidence can include what you tell the member at the hearing, information or documents you give the Tribunal, information or documents you ask others to give the Tribunal.

5. When the Tribunal wrote to the applicant on 16 September inviting him to a hearing on 26 October the Tribunal said in that letter that the hearing was important.  In the letter the Tribunal said:

   We now invite you and any persons listed above to come to a hearing of the tribunal to give oral evidence and present arguments in support of your claims.  You can also ask the Tribunal to obtain oral evidence from another person or persons. 

6. The Tribunal also said:

   If you think you might be unable to attend the hearing you must contact the Tribunal immediately.  If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice. 

7. Unfortunately, the applicant did not attend the hearing.  The applicant told the court that at the time of the hearing he was sick and that he could not lift up his arm.  He said that he did not know any English so he could not telephone the Tribunal to tell them that he was sick. 

   
   

   He said he tried to find the place where the hearing was to be held, but he could not find it.  By then it was too late for him to attend the hearing. 

8. The Tribunal decided to exercise its power under section 426A of the Migration Act to make its decision without taking any further action to enable the applicant to appear. It is hardly surprising that the Tribunal did not grant the applicant's application in those circumstances.

   
   

   The Tribunal said at page 63 of the court book:

   Although given every opportunity to do so, the applicant has not provided any evidence or detail, either written or oral, to substantiate his claims, neither has he explained why he did not depart from Indonesia for nearly 12 months after obtaining an Indonesian passport if he genuinely feared suffering persecution on account of his ethnicity more than five years after the major ethnic riots in Indonesia in 1998.

9. The Tribunal said that in the absence of that evidence or explanation the Tribunal was not satisfied that there was any foundation to the applicant's claims.  The Tribunal was not satisfied on the evidence before it that the applicant has a well-founded fear of persecution. 

10. I am aware of the fact that the applicant is not legally represented. 

    
    

    He has told the court that he would like to reside in Australia and obtain permission to work.  He would like to become a permanent resident.  He said that if he were to go back home there was nothing for him there.  He has not provided any grounds as to why the Tribunal made any error in deciding his case.  What he has done is repeat his claims that he is entitled to refugee status because of his Chinese ethnicity.  He has said that other people in Indonesia offered violence to himself and his family, certainly during the ethnic riots in 1998. 

    
    

    He said that these people demanded money from him and his family and actually stole his money.  He said that they had looted everything from his shop and he suffered injuries.  He said that the rioters burnt his house and other shops.  He said that his wife's sister was even raped and this was very distressing to him and to his wife. 

11. The Tribunal's reasons for decision are very sketchy.  They are not very detailed.  The Tribunal member considered what evidence there was but was not satisfied that the evidence showed that the applicant had a well-founded fear of persecution for a convention reason.  It is up to an applicant to prove his or her case before a Tribunal.  It is not the task of the Tribunal to undertake its own investigations or to disprove an applicant's claim.  It is always the case that the applicant must prove a case to the Tribunal.  The Tribunal was not satisfied that the material provided was sufficient to convince the Tribunal that the applicant had a well-founded fear of persecution. 

12. It is most unfortunate that the applicant did not attend the hearing of the Refugee Review Tribunal.  If he had done so he may well have been able to have given oral evidence to support his claim. 

    
    

    The Tribunal member would have been able to ask him questions about his case.  It is impossible to say whether the applicant would have been successful if he had attended the hearing.  What can be said is that the applicant made it almost impossible for the Tribunal to be satisfied when he did not attend the hearing.  There was just not enough evidence available to satisfy the Tribunal member about the applicant's claims. 

13. I have read through the Tribunal decision, which is rather brief. 

    
    

    Whilst the decision is brief, it makes it quite clear that the applicant did not provide sufficient evidence to satisfy the Tribunal.  I cannot see any reviewable error from the transcript of the decision.  It is hard to see what else the Tribunal could have done other than deciding to deal with the application on the basis of the material that had been provided. 

    
    

    It is not the fault of the Tribunal that the applicant did not attend the hearing. 

14. I am satisfied that there is no jurisdictional error. I am satisfied that the decision of the Refugee Review Tribunal is a privative clause decision as set out in subsection (2) of section 474 of the Migration Act.

    
    

    The application is dismissed.

15. The respondent’s solicitor seeks an order that the applicant should pay the respondent's costs of these proceedings. The applicant has been wholly unsuccessful. The amount sought by the respondent, namely $3,900.00, is well within the scale provided by the Federal Magistrates Court Rules. In reply the applicant says that he has no funds and is not able to meet the amount of $3,900.00 at this stage. To my mind, that is not a reason not to make an order for costs. In my view, it is appropriate that a successful party should be the recipient of a costs order in its favour. Whilst a shortage of funds is not a reason not to make an order for costs, it is a reason for allowing time to pay.

16. The applicant is to pay the respondent's costs fixed in the sum of $3,900.00 and I allow four months to pay. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  30 August 2005