SZHTE v Minister for Immigration - [2006] FMCA 660

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 660

MIGRATION – RRT decision – applicant declined hearing before Tribunal – no arguable ground for judicial review – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001, rr.44.05, 44.12, 44.12(1)(a)
Migration Act 1958 (Cth), s.476

Applicant:

SZHTE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3561 of 2005

Judgment of:

Smith FM

Hearing date:

26 April 2006

Delivered at:

Sydney

Delivered on:

26 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms G Broderick

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3561 of 2005

SZHTE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

In this matter the applicant filed on 5 December 2005 an application under r.44.05 of the Federal Magistrates Court Rules 2001 for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 October 2005 and handed down on 15 December 2005.
The application itself contained no proper grounds supporting the relief that was sought, merely asserting further facts relevant to the applicant’s refugee claims. At a first Court date on 18 January 2006 the applicant was represented by a solicitor. I ordered the service on the applicant of a bundle of relevant documents, and gave her leave to file an amended application and any affidavits relied upon by 14 April 2006. I listed the matter today for a hearing under r.44.12 as to whether the application had raised an arguable case for the relief claimed.
The applicant’s solicitor has filed a notice of ceasing to act. The applicant herself has filed an amended application and affidavit. I have read those documents and also the documents contained in the Court Book filed by the respondent. The applicant has attended today in person and made submissions to which I shall refer below. She did not need any assistance from an interpreter, since she reads, writes, and speaks English.
The Court Book contains an application for a protection visa lodged on 18 May 2005 with the assistance of an agent, Mr Mollah, which attached a two‑page handwritten statement signed by the applicant. The letter set out a history in which the applicant lost a managerial position in the Philippines, which is her country of nationality, and then received threats from other employees whose employment had also been terminated. She claimed that she reported the threats to authorities:
but to no avail. Authorities claims that my situation is not a unique one since most head of office receive threats when the business close. Especially that labor union were [illegible] with KMU & other underground groups that will aggravate the anger of those terminated employees.
My family then decided that I should go somewhere and to a safety place, since the government cannot protect me.
A delegate refused the application on 17 August 2005, sending a statement of reasons to both the applicant’s agent and the applicant. His reasons included an opinion:
I believe that the essential and significant reason for the applicant’s fear of persecution is of a private nature, motivated by financial loss and not related to a Convention reason.
The applicant filed on 6 September 2005 an application for review by the Tribunal. Her application did not appoint an agent or person authorised to act for her, and gave her own residential address in Griffith as the address to which she requested correspondence to be sent.
By letter dated 29 September 2005 the Tribunal wrote to the applicant telling her:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicant to attend a hearing on 14 November 2005, and to send to the Tribunal a “Response to Hearing Invitation Form”. The applicant did return that form signed by her and lodged it on 20 October 2005. It said in response to the question “Do you want to come to a hearing?”:
No, I do not want to come to a hearing. 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 Tribunal then decided the case without taking any further action to invite the applicant to attend the hearing. I can see no argument that the Tribunal’s procedure in this respect was not authorised by the Migration Act.
In its reasons, the Tribunal referred to the applicant’s account in her statement as “vague, lacks crucial detail and is internally inconsistent”. The Tribunal referred to some concerns it had which it thought required explanation. It said:
There is also nothing in her account to indicate that the reason for the threats was any of those set out in the Refugee Convention. For the above reasons I am unable to establish the relevant facts.
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 can for myself see no arguable error, whether jurisdictional or otherwise, in the Tribunal’s reasons.
The applicant’s amended application contains 10 paragraphs, but it is unnecessary for me to recite its contents in full. It contains an explanation by the applicant as to her decision not to attend the hearing being:
The Registered Migration agent Dr Zaheer ul Haq Mollah was untraceable and the Applicant didn’t felt comfortable to appear before the Tribunal without being represented (reasons also given in attached Affidavit).
The applicant in her oral submissions today conceded that she did receive the invitation to a hearing, was able to read English, and returned the form to which I referred above. Her explanation for those decisions, which it appears she now regrets, was that she was unable to get advice from her previous agent, Mr Mollah. However in my opinion, even assuming that all the applicant’s actions were reasonable and understandable, her explanation could not provide an arguable ground of jurisdictional error vitiating the procedures which were followed by the Tribunal.
Paragraph 4 of the amended application asserts:
Although, the Applicant didn’t appear in person, but the Tribunal had her original Protection Visa Application in front of it, to decide on her Protection Claims. In her Application to the DIMIA, it is very clearly stated that because of the reason that the Applicant (as Administrative Manager), laid off few ‘Muslim’ workers, they were after her life, as the Applicant herself is a Christian. (emphasis in original)
However, the statement attached to the applicant’s visa application and the application itself contains no such reference to the workers being Muslim, nor does it contain, in my opinion, any arguable suggestion of the Convention ground which is asserted in this paragraph. The applicant herself has not been able to show me any such suggestion in the material which was before the Tribunal. I therefore am unable to identify any argument that there was a claim which was before the Tribunal which it failed to address.
The applicant elaborated in her amended application and her affidavit, additional evidence which supported her refugee claims and showed a Convention nexus. However, none of that material was before the Tribunal, and the Court would not have power to investigate that area of fresh evidence if the matter proceeded.
Paragraph 6 of the amended application asserts:
The Tribunal made an error of law, by not taking in to account the relevant information which could have been so easily available to it.
However, I am unable to identify any procedure followed by the Tribunal which could have given rise to the rare situation where it would have been under an obligation to make further inquiries. I can see no argument that the Tribunal did not correctly approach the matter on the basis that it was up to the applicant to present all the material which could support her refugee claims.
The balance of the material presented to the Court by the applicant, including her oral submissions to me, sought to invoke the Court’s sympathy so as to allow her matter to become more protracted. However, I can see no purpose in allowing the matter to continue in the Court’s list. As I have pointed out to the applicant, if indeed she has not been properly advised on how to prosecute her claims for refugee status, her only recourse would appear to be to seek to persuade the Minister to exercise her discretion to allow a second application. The Court has no role in that process and the applicant would be better advised seeking assistance to pursue that avenue than proceeding with the present hopeless application.
For the above reasons I consider that the application brought by the applicant has not raised an arguable case for the relief claimed, and it is appropriate for me to exercise the Court’s power to dismiss the application under r.44.12(1)(a).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 19 May 2006