SZGSW v Minister for Immigration

[2006] FMCA 1072

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1072

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – failure of applicant to appear at hearing – grounds do not disclose reasonable prospects of success – application dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules 2001.

Migration Act 1958 (Cth), s.477(1)
Federal Magistrates Court Rules 2001, rr.13.03A(c); 16.05; sch.1

Applicant: SZGSW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1819 of 2005

Judgment of: Emmett FM

Hearing date: 17 July 2006

Date of Last Submission: 17 July 2006

Delivered at: Sydney

Delivered on: 17 July 2006

REPRESENTATION

No appearance by the Applicant

Counsel for the Respondent: Ms L. Clegg

Solicitors for the Respondent: Ms G. Broderick, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1819 of 2005

SZGSW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1.The first respondent seeks an interlocutory order that the application before this Court be dismissed pursuant to r.13.03(A)(c) of the Federal Magistrates Court Rules 2001 due to the absence of the applicant from today's hearing.

2.The applicant first filed an application in this Court on 11 July 2005 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), in respect of which he was notified on 3 February 2000.  On 4 August 2005, directions were made for the filing and serving of additional evidence and material by the applicant including an amended application and directing the filing and serving of written submissions two weeks prior to hearing. On that occasion the matter was set down for hearing on 7 December 2005. 

3.On 23 August 2005, the first respondent filed a notice of objection to competency and alleged that the delay between notification to the applicant of the Tribunal's decision and the filing by the applicant in this Court seeking judicial review of that decision was outside the 28 day period provided for in s.477(1) of the Migration Act 1958 (Cth) (“the Act”).

4.On 14 September 2005 an amended application was filed in this Court, however, no other document has been received by the applicant from this Court, nor has there been any communication from the applicant to my Chambers nor the first respondent. 

5.On 16 November 2005, a letter was sent from my Chambers to the applicant's identified address for service informing him that the matter would be heard on 10 April 2006.  On 10 March 2006, a letter was sent from my Chambers informing the applicant that the hearing would take place on 17 July 2006 at 2.15pm, that being today.

6.The first respondent tendered two documents, one being a letter, dated 6 July 2006, sent by express post to the applicant at the address for service notified on his amended application enclosing the respondent's outline of submissions, and reminding him that the matter was listed for hearing today at 2.15pm.  That document is marked ‘exhibit 1R.’ 

7.The second document relied upon by the first respondent is a copy of an email from Olivia Mak, the first respondent’s solicitor, to my deputy associate at the time, in relation to the department's records of the applicant's new address, following his release from Villawood Detention Centre.  I note that that address is the same as the address on the amended application, and the same address to which the letters from Chambers notifying of a new hearing date were sent.

8.The applicant was called three times between 2.15pm and 2.33pm.  Shortly prior to 2.33pm, I was informed by the first respondent’s solicitor that attempts had been made to ring the telephone numbers provided to the first respondent by the applicant.  One telephone number was a landline and I am informed that the line just rang out.  The second telephone number was a mobile number and had a recorded message.  In the circumstances, I am satisfied that, for whatever reason, the applicant was aware of the hearing and has chosen not to be present today. 

9.The applicant's amended application, filed on 14 September 2005, identifies three grounds in the following terms.

“1. The Tribunal constructively failed to exercise its jurisdiction in accordance with the Migration Act 1958 in finding without basis that the applicant’s fear of harm from persecution was not well-founded.

a.The Tribunal erred in finding that the attack on the applicant’s family “does not come within the ambit of the Convention” in circumstances where country information indicates attacks on Sino-Indonesians are systematic and continuing despite regime changes;

b.While acknowledging that “there has been a history of violence towards the Chinese ethnic community” the Tribunal member without basis nevertheless inferred that these “incidents… have been peculiar to the particular areas the violence has occurred;”

c.The Tribunal unreasonably found that the applicant’s “claimed fear … are (sic) localised and peculiar to Medan” contrary to independent country information available to the Tribunal at the time of the hearing;

d.The Tribunal found without basis that the applicant would suffer “minor problems” if relocated to Jakarta without eliciting any evidence in this regard;

e.Despite information to the contrary and without basis the Tribunal member found that the police reacted appropriately when contacted by the applicant notwithstanding the tragic consequences from delay in police response and DFAT Country Information Report 180/99 of 28 April 1999 indicating “negligible” opportunities to seek justice due partly to a “weak legal system”.

2. The applicant’s claim should be re-assessed given the lengthy lapse of time since the RRT handed down its decision and the significant socio-political changes that have occurred in Indonesia since the original hearing date.

3. The Tribunal erred in finding that the Applicant is not a person to whom Australia has protection obligations.”

10.Those grounds largely appear to be cavilling with the conclusions and findings of fact made by the Tribunal.  However, I have not considered in detail the applicant's claims save to note that a brief reading of the Tribunal's decision appears to reveal that the Tribunal's decision was based upon the fact that the conduct, of which the applicant complained as amounting to persecution, was found by the Tribunal not to be directed to the applicant because of his Chinese ethnicity. Rather the conduct flowed from criminal activity on the part of those seeking to extort the applicant and his business. 

11.In the circumstances, the applicant’s application does not appear to have reasonable prospects of success.  Accordingly, the applicant’s proceeding before this Court is dismissed pursuant to r.13.03A(c) Federal Magistrates Court Rules 2001.

RECORDED  :   NOT TRANSCRIBED

12.The first respondent seeks costs fixed in the amount of $4000. I note that that sum is less than that provided in sch.1 of the relevant Federal Magistrates Court Rules 2001 and I also have regard to the fact that it represents about 75 per cent of the total costs expended.  In the circumstances, I am satisfied that the costs are reasonable. 

ORDERS DELIVERED

I also direct the first respondent to prepare orders for filing in the Registry, and to notify the applicant of today's orders together with a copy of r.16.05 of the Federal Magistrates Court Rules2001. 

1. I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Emmett FM

   Deputy Associate:  S. Tsang

   Date:  28 July 2006

   [FMCoA1]Sylvia – you didn’t order the name amendment but I thought it was appropriate to put it in.

   [FMCoA2]Joinder orders were not made on the day but I thought it was appropriate to insert them.

   [FMCoA3]Sylvia – do you want to say the application is dismissed before talking about costs?