SZHIH v Minister for Immigration
[2007] FMCA 300
•26 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHIH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 300 |
| MIGRATION – Review of decision of RRT – where Tribunal unable to be satisfied under s.65 – where applicant fails to attend hearing. |
| Federal Magistrates Court Rules 2001, Part 13, r.13.03A(c) |
| Applicant: | SZHIH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2938 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 February 2007 |
| Date of last submission: | 26 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2007 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $3,250.00.
The name of the first respondent be changed to Minister for Immigration and Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2938 of 2005
| SZHIH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of South Korea. He arrived in Australia on 12 December 2004. On 27 January 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 12 March 2005 a delegate of the Minister refused to grant a protection visa and on 18 April 2005 the applicant applied for review of that decision. On 22 July 2005 the Tribunal wrote to the applicant informing him that it 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. The Tribunal invited the applicant to a hearing which was scheduled to take place at noon on 29 August 2005. With that letter was a form known as a response to hearing invitation form. On 27 July the applicant completed the form indicating that he did want to come to the hearing but the applicant did not attend.
In his application to this court the applicant indicated that:
“I have expressed my interests of intending the hearing before the scheduled date. Unfortunately something happened suddenly on that day which made me unable to attend. I contacted the Tribunal the day after and expressed my concern and requested for another hearing. My request was declined, which was not fair to me.”
There is no evidence in the green book that I have that the applicant contacted the Tribunal. I note that the Tribunal made its decision on 30 August the day after the hearing. It handed that decision down on 20 September 2005. I have no reason not to believe that if the applicant had contacted the Tribunal as he claims some record of that contact would have been made. I think it is quite likely that if things did occur as the applicant says the Tribunal would have considered giving him another hearing. In the absence of any evidence from the applicant I am unable to be satisfied that things occurred as has been suggested.
The applicant claimed in a statement commencing at [CB 26] and concluding at [CB 28] that he is of Korean at least part Chinese ethnicity. He claims to have suffered as a child from bullying because of his Chinese descent. He claims that neither himself nor his sister were able to complete their primary education. He claims that he was required to undertake the most menial and unpopular of tasks in order to make a living. He claims that in 1999 he tried to open a restaurant but that business failed because he was harassed by gangs. The applicant claimed that he began to fight for his rights and sent pamphlets and letters to the local government complaining about the way in which people like himself were being treated. He claims that in October 2002 he was arrested. His house was searched and although he was released he was the subject of continued harassment from the police authorities which led to his wife leaving him in 2003. He states that he has lost contact with his sister and he is frightened that she has disappeared. He is concerned that this will happen to him if he returns to Korea.
It will be seen from this précis of the applicant’s statement that there would have been a number of questions the Tribunal would wish to have asked the applicant had he attended at the hearing so that it could complete its statutory obligation of determining whether or not it was satisfied that he was a person to whom Australia owed protection obligations. As the Tribunal itself said at [CB 55] in its findings and reasons:
“It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making the relevant facts of the individual case will have to be supplied by the applicants themselves, in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her [authorities are remitted].
Accordingly, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements of the grant of protection are made out. Based merely on his assertions, I am not satisfied the applicant’s alleged fear is well founded, that it is for reasons of a Convention ground, or that he may, or may have, suffered harm amounting to persecution for the purposes of the Refugees Convention, should he return to South Korea.”
The Tribunal’s conclusion that it has failed to reach a state of satisfaction because it had no real evidence other than the applicant’s assertions is one which is perfectly open to it on the basis of the evidence (or lack of it) put before it. In those circumstances the court cannot impeach the Tribunal’s decision.
The applicant arrived nearly half an hour late today. Luckily I had not concluded the recitation of my decision to dismiss the matter under Part 13, r.13.03A(c) of the Federal Magistrates Court Rules 2001. He did not add anything to the case which had been put on his behalf in the application. He says he wishes to live in Australia, that there are many reasons that he cannot return to Korea. These are not matters with which the court can be concerned as it is here only to review the decision of the Tribunal and not to provide the applicant a merits review.
The application is dismissed. I order that the applicant pay the respondent’s costs which I assess in the sum of $3,250. I order that the name of the first respondent be changed to the Minister for Immigration and Citizenship.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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