SZGDC v Minister for Immigration
[2005] FMCA 1274
•17 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDC v MINISTER FOR IMMIGRATION | [2005] FMCA 1274 |
| 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 India – no jurisdictional error – where Applicant chose not to attend the RRT hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.477(1) |
| Applicant: | SZGDC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1018 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 August 2005 |
| Date of Last Submission: | 17 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Mr Bird Phillips Fox |
ORDERS
The application is dismissed.
That Applicant is to pay the Respondent’s costs fixed in the sum of $3,500.00 and I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1018 of 2005
| SZGDC |
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 made on 14 May 1998.
The application to review this decision was filed on the 19 April 2005. It is nearly seven years outside the time for filing an application as set out in s.477(1A) of the Migration Act.
The applicant is a citizen of India who arrived in Australia in April 1993. He applied for a Protection Visa on 21 November 1996 and a delegate of the Minister refused that application on 24 April 1997.
On 22 May 1997 the applicant sought a review of that decision by the Refugee Review Tribunal.
The Tribunal wrote to the applicant on the 1 April 1998. They sent a copy of that letter to the applicant's solicitors, Adrian Joel & Company. The letter said:
The Tribunal has looked at all the papers relating to his application but is not prepared to make a favourable decision on that information alone.
The letter offered the applicant an opportunity to attend a hearing of the Tribunal to give oral evidence in support of his claim. The hearing was listed for 9 am on Thursday 11 June 1998. According to page 94 of the Court Book, a Refugee Review Tribunal file note says:
That on 11 May 1998 the applicant's adviser rang the Refugee Review Tribunal.
The note says:
11.05.98. Adviser rang to say the A/N (which I understand to be the above named) had changed his mind and would not attend the hearing on 11 June. The A/N would like to have a decision on paper. I told Mr Joel that he had to put it in writing and he agreed.
That same day the applicant's solicitors forwarded by fax an authority signed by the applicant saying:
I herewith provide my instructions that I seek a decision on the papers without the need to attend formal RRT hearing.
Upon receipt of that letter, the Tribunal proceeded to deal with the application without further opportunity to the applicant to attend the hearing. At page 101 of the Court Book, in the findings and reasons, the Tribunal member said:
As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.
The Tribunal explored the facts as had been set out in the applicant's application and noted that the Tribunal wished to explore the exact reasons why this particular applicant could not find employment when many Indian Muslims were able to find employment. The Tribunal found that a number of relevant questions in respect of the applicant's case were left unanswered. Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution.
In the applicant's amended application he gives several grounds for review. First; he claims that the Tribunal's decision was in breach of procedural fairness. He provides no details of any breach of procedural fairness and was not able to add to that at the hearing other than to point out that the Tribunal decision contained an error in citing the year in which he arrived in Australia.
The second ground was that the Tribunal denied the applicant natural justice in that it did not turn its mind to the fact that the applicant had had no contact with his family or home country for several years.
The applicant did not say why that was a denial of natural justice; except to say that his lawyers were supposed to be handling the case and he gave all the papers to them. He told the Court that there had been no applications since the Tribunal decision in May 1998, although it emerged during the course of these proceedings that he had made application for a bridging visa whilst he was in immigration detention and that had been refused. He then sought a review from the Migration Review Tribunal. The applicant also told the Court that he was involved in a class action brought by his solicitor but provides no details of this.
The third ground set out in the amended application says that the earlier ground; i.e. the fact that the Tribunal did not turn its mind to the fact that the applicant had had no contact with his family or home country for several years, constituted a failure by the Tribunal to give genuine and realistic consideration to the application and act in a bona fide manner. The applicant was not able to explain this.
The fourth ground was that the Tribunal refused to grant a Protection Visa without any proper grounds and proper investigation. It is not the task of the Refugee Review Tribunal to conduct its own investigations of an applicant's claim. It is for an applicant to provide a case sufficient to satisfy the Tribunal that he or she has a well-founded fear of persecution for a Convention reason.
As the written material provided to the Tribunal was very sketchy and the applicant chose not to attend the Tribunal hearing; it is hardly surprising that the Tribunal was not satisfied that the applicant established that he had a well-founded fear of persecution.
The next ground was that there was no evidence or other material to justify the making of the decision. The applicant goes on to say that the independent information supported the applicant and no reasons were given by the Tribunal as to why it took notice of the independent information and found against it. There was no independent information referred to in the Tribunal decision. The final ground was that there was nothing found against the applicant to refute his credibility and therefore a breach of natural justice occurred.
The fact is that the Tribunal considered what little information it had and was not satisfied that the applicant had established a well-founded fear of persecution. There is no breach of natural justice. There is no jurisdictional error. The Courts have often said that applicants who choose not to attend the hearing of the Refugee Review Tribunal do themselves no favours. The applicant said that his lawyer told him it was not necessary to attend the Tribunal hearing. In my view, if that is what the lawyer said, it was a wrong decision. It is very difficult for an applicant to be successful if that applicant does not attend the hearing and take advantage of the opportunity to give evidence.
The Tribunal noted that there were several areas where it would have liked to have heard evidence from the applicant if only he had chosen to attend. It is not the task of the Tribunal to make out an applicant's case, as I said earlier.
The application for review is without merit. There is no jurisdictional error. The decision is a privative clause decision and as no error of jurisdiction has been established, the application will be dismissed.
There is an application for costs as the applicant has been wholly unsuccessful and the respondent Minister seeks an order for costs.
The applicant says that he has no money to pay the amount of $3,500.00 which is sought and which appears to me to be a reasonable figure in the circumstances. Not having funds to pay is not, of itself, a ground for refusal of an order for costs in favour of a successful litigant. It is a ground to consider time to pay. I propose to make a costs order on a party and party basis and I will allow time to pay.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 31 August 2005
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