SZGVZ v Minister for Immigration
[2006] FMCA 465
•6 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGVZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 465 |
| MIGRATION – Visa – protection (Class XA) 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 Mongolia – where applicant did not attend Tribunal hearing – where applicant did not attend court – where applicant voluntarily left Australia prior to the hearing – no reviewable error. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.426A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
SZBBI & Anor v Minister for Immigration [2004] FMCA 946
| Applicant: | SZGVZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2012 of 2005 |
| Delivered on: | 6 March 2006 |
| Delivered at: | Sydney |
| Hearing date: | 6 March 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | No Appearance |
| Solicitor for the Respondent: | Ms McNamara |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2012 of 2005
| SZGVZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of the decision of the Refugee Review Tribunal. The Tribunal made its decision on 15th June 2005 and handed that decision down on 12th July 2005. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant is a citizen of Mongolia who arrived in Australia on a temporary business visa in September 2004. On 18th October in that year he applied for a Protection (Class XA) visa. That Application was refused on 12th February 2005 and the Applicant lodged an application for review with the Refugee Review Tribunal on 10th March 2005. The application was last before this Court on 8th December 2005 and was listed for Final Hearing at 2:15pm today.
The Applicant has not attended Court today. His absence has been explained by an affidavit of Kate Elizabeth McNamara, solicitor, affirmed and filed on 27th February 2006. Annexed to Ms McNamara's affidavit and marked with the letter are two pages from the records of the Department of Immigration and Multicultural Affairs showing that the Applicant voluntarily left Australia on 21st December 2005. There is no record to show that he has returned to Australia and indeed he would have had to have applied for another visa in order to re-enter the country. In the circumstances I am asked to proceed to hear the application to finality.
I note that the Refugee Review Tribunal wrote to the Applicant under the provisions of s.425 of the Migration Act on 14th April 2005. The letter made it clear to the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. Accordingly, the Tribunal invited the Applicant to attend a hearing of the Tribunal where he could give evidence and present arguments. That hearing was scheduled for 11:00am on Friday 10th June 2005.
The Applicant did not attend. The Tribunal exercised its power under s.426A of the Migration Act to proceed with the review without giving the Applicant further opportunity to attend. The Tribunal Member noted that the Applicant did not contact the Tribunal to explain that he either was or was not going to attend the hearing.
The Tribunal noted the Applicant's age and noted the fact that he qualified as a sports teacher in his native Mongolia and was employed as a high school teacher in 1996 until February 2002. He said that he was a follower of the Christian religion and had been persecuted for reasons of that religion. He had stated that he had been threatened by extremists who had tried to kill him and as such he had been forced to leave Mongolia for his own safety. He submitted no further details of his claim other than to say that he had no freedom for his religious activities in Mongolia and his life was at risk because he had converted other people to Christianity. He stated that he feared the present government of Mongolia, he feared the security forces, his community people and religious extremists. He doubted that he would receive any protection from the authorities.
The Tribunal made a note at p 62 of the Court Book that the Applicant had provided only the bare outline of his claims. His account of his reasons for claiming to be a refugee amounted to a series of bare assertions entirely lacking in the sort of detail on the basis of which any assessment could be made with regard to whether or not he had a well-founded fear of being persecuted and if so, for a convention reason.
I have had the opportunity of reading an Outline of Submissions prepared on behalf of the Respondent Minister by Ms McNamara, solicitor. She submits that the decision of the Tribunal in the present case is a privative clause decision as defined by sub-s.474(2) of the Migration Act and that s.474 validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.
In respect of the Applicant's application which was filed on 29th July 2005 she notes that it raised a number of unparticularised grounds of review. The submission is made, and I believe correctly, that the Refugee Review Tribunal could not acting reasonably have made any other decision on the limited information it had before it other than to affirm the decision of the delegate. The Tribunal could not grant the Applicant's application unless it was satisfied that the criteria for the grant of a protection visa had been met. I refer to SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] and [16].
The Tribunal was required to notify the Applicant that it could not make a finding in his favour on the documents before it and invited him to attend a hearing. This requirement comes under s.425 and as I said, there is evidence before me to show that the Tribunal complied with that requirement. The Tribunal was entitled to make a decision without taking any further action to enable the Applicant to appear due to the Applicant's wholly unexplained failure to appear before the Tribunal.
I note the decision of the Full Court of the Federal Court in S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [26] where their Honours said that the applicant could not complain if his application was rejected because amongst other reasons, he failed to take up that opportunity, that is the opportunity to attend a hearing. I am also referred to a decision of one of my learned colleagues in SZBBI & Anor v Minister for Immigration [2004] FMCA 946 where there is authority for the proposition that the decision by the applicant not to attend a Tribunal hearing rendered the outcome of his protection visa application inevitable. Whether or not the outcome is inevitable, it is fair to say that an applicant is highly unlikely to succeed when he or she does not take the opportunity to attend before the Tribunal to give evidence especially when he or she has been given notice by the Tribunal that the Tribunal was unable to be satisfied on the basis of the information then before it.
I am satisfied that the decision of the Refugee Review Tribunal is not affected by jurisdictional error, I read the decision myself and made my own independent assessment of it and I am unable to discern any jurisdictional error. As such it is a privative clause decision as to find in sub-s.474(2) of the Migration Act and it is protected by sub-s.474(1) of the Act. The application will be dismissed with costs.
There is an application for costs. The Applicant has been wholly unsuccessful in his case and indeed he has not attended court. There is no reason why the Court should depart from the usual practice that costs should follow the event. The amount of costs sought is in the sum of $3,400.00. I note that that takes into account the original First Court Date and the fact that the matter was originally listed for Final Hearing in January next year and that the matter was then re-listed before me on the Court's initiative in December 2005 and given a further hearing date.
In my view the sum of $3,400.00 is a reasonable figure and well within the scale envisaged by Schedule 1 of the Federal Magistrates Court Rules 2001. The Applicant is to pay Respondent's costs fixed in the sum of $3,400.00. The application will be removed from the list of cases awaiting finalisation and I require a transcript of my reasons for this decision.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 4 April 2006
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