SZFUU v Minister for Immigration - [2005] FMCA 1483

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFUU v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1483

MIGRATION – RRT decision – Indian claimant did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), ss.474(1), 483A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8(2)(b)

Applicant:

SZFUU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 540 of 2005

Judgment of:

Smith FM

Hearing date:

27 September 2005

Delivered at:

Sydney

Delivered on:

27 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Nanson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 540 of 2005

SZFUU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking remedies by way of judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 June 2001 and handed down on 17 July 2001. The Tribunal affirmed the decision taken by a delegate on 31 May 2000 refusing an application for a protection visa.
The Court’s powers when exercising this jurisdiction are limited by s.474(1), which applies to this application since the applicant had not sought judicial review of the Tribunal’s decision before its commencement (see cl.8(2)(b) of Sch.1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)). As interpreted by the High Court, its effect is that I do not have power to set aside the Tribunal’s decision unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa or for any other permission to stay in Australia.
The applicant came to Australia in April 1998 on a two year student visa. Shortly before its expiry he applied for a protection visa assisted by an agent, Mr Anil Agnihotri. A short statement attached to his application claimed that he had friends “who were engaged in Naxalite activities” and who had been arrested by police. He said: “Later we heard that some of them were killed”. According to the delegate, Naxalites in India are Maoist guerrillas. The applicant said:
When they (the police) came to know that I associated these students they started coming after me. They came to my place and have asked for me. They have asked my parents to present me to police as soon as possible.
The applicant said he went into hiding, and then came to Australia.
The delegate’s reasons for refusing the application referred to the applicant’s delay in claiming protection, including during a period after the College which he had attended had ceased to operate in 1999. The delegate considered that his claimed fear of persecution on return to India was not well‑founded.
The applicant appealed to the Refugee Review Tribunal and appointed Mr Agnihotri as his agent to act for him. His application merely repeated his earlier general claims, and no supporting material was sent to the Tribunal.
The Tribunal acknowledged the application in a letter sent to the applicant and his agent which said:
If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments.
The applicant was sent a letter inviting him to a hearing on 3 July 2001. The letter was sent to the addresses originally notified to the Tribunal, and also to a second address of which it was notified. A copy was also sent to his agent. The Tribunal’s letter said:
The Tribunal has looked at the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.
There is no doubt that the letter was received by the applicant’s agent, since on 25 June 2001 the agent lodged a response which said that the applicant did not want to come to a hearing. It said:
I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The response is signed by the agent who was appointed by the applicant to act on his behalf in relation to the application. There is no evidence before me that the Tribunal was on any notice that the response was not given after full instructions being obtained from the applicant. Moreover, nothing the applicant has said to me today causes me to form such a conclusion.
The Tribunal’s statement of reasons indicated the above history, and said:
This matter has therefore been determined on the evidence available to the Tribunal.
The Tribunal set out the applicant’s claims, and said:
The applicant’s claims are so vague and general that it is unable to establish the relevant facts. If the applicant had attended the hearing before the Tribunal I would have asked him to provide further details concerning all aspects of his claims.
The Tribunal referred to concerns arising from his statements and concluded:
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention.
I have considered the procedures followed by the Tribunal and its reasoning, and I can identify no defect providing jurisdictional error affecting its decision.
The applicant, before commencing the present proceedings, commenced proceedings in the High Court of Australia in August 2002 seeking orders nisi. An application was remitted to the Federal Court, and was eventually dismissed by Selway J on 20 June 2003 for failure to comply with directions. The present application was then brought to this Court on 2 March 2005.
The Minister has filed a notice of motion seeking the summary dismissal of the proceeding as an abuse of process or because no reasonable basis for the application has been shown. However, in the circumstances, I considered it more appropriate to deal with the application finally and on its substantive merits.
As I have indicated above, I am not persuaded that it has any merit. The application filed by the applicant follows a precedent providing a list of general heads of judicial review and complaints about factual assessments, but without any particulars showing that the grounds could meaningfully be applied to the present proceeding.
The applicant today has not been able to give those grounds any substance. His submission to me was that he had been in Australia seven years. He liked staying here, and did not want to stay here illegally. He told me that he had a background in a trade as a machinist and wanted to stay. However, he was not able to make any submission addressing the issues which I have to decide.
For the reasons I have indicated above I have not found any jurisdictional error affecting the Tribunal’s decision. I find that it is a privative clause decision within s.474(1) of the Migration Act for which relief is barred. I must therefore dismiss the application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 October 2005