SZHVH v Minister for Immigration
[2006] FMCA 818
•23 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 818 |
| MIGRATION – RRT decision – Indonesian claiming persecution for Chinese ethnicity – did not attend Tribunal hearing – no arguable jurisdictional error raised – application dismissed at show-cause hearing. |
| Migration Act 1958 (Cth), ss.426A(1), 476 Federal Magistrates Court Rules 2001, r.44.12 |
| Applicant: | SZHVH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3680 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 23 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3680 of 2005
| SZHVH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application under r.44.05 of the Federal Magistrates Court Rules, invoking the Court's jurisdiction under s.476 of the Migration Act and seeking an order that the respondents show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal handed down on 15 November 2005. The Tribunal affirmed a decision of a delegate refusing a protection visa to the applicant.
The application was returnable before me at a first Court date on 25 January 2006, at which the applicant attended and was assisted by a Mandarin interpreter. The nature of the Court's proceedings was explained to the applicant by an information sheet and by myself. I made orders which were explained to the applicant, allowing him time to obtain legal advice after receiving a bundle of documents and to file an amended application and affidavits by 18 April 2006. The applicant was told of today's listing, and clearly warned that his application might be dismissed today if I was not satisfied that it raised an arguable case for the relief claimed.
He has filed an amended application but no additional evidence. The applicant has received a Court Book, and has received advice under the free legal advice scheme. I have carefully considered the documents in the Court Book filed by the Minister's solicitors, as well as the documents filed by the applicant.
The applicant is a national of Indonesia of Chinese ethnicity. In a brief statement attached to his visa application he claimed:
I came to Australia to seek protection as my house in (location) had been looted and burnt down to ashes. Some of my female relatives living in Jakarta were raped by the local.
Other similar claims were made, showing similar obscurity as to their date and details.
Following the refusal of his application, the applicant appealed to the Tribunal without appointing an adviser to act on his behalf. His application was supported only by a statement repeating parts of his previous statement.
By letter dated 12 September 2005 sent to the applicant's nominated address for correspondence, he was informed:
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.
He was invited to a hearing on 18 October 2005, and told that if he did not attend the Tribunal could make a decision on his case without further notice.
He did not attend that hearing. In its reasons, the Tribunal said that it received no communication from the applicant, and that it was unable to telephone him since no telephone contact was provided. The Tribunal decided the case pursuant to s.426A(1) of the Migration Act, without taking further action to enable the applicant to attend a hearing.
I can see no arguable ground of jurisdictional error in its decision so to proceed. No contention to that effect has been made by the applicant in the documents he has lodged.
The Tribunal's reasoning for affirming the delegate's decision was summarised at the end of its “findings and reasons”:
The Tribunal put the applicant on notice, in writing that it was unable to make a decision in his favour on the material it had before it. He did not provide any further information to support his claims nor did he give the Tribunal the opportunity to explore aspects of his claims with him.
The Tribunal is not satisfied on the evidence before it, that the applicant had a well-founded fear of persecution within the meaning of the Convention.
I am unable to see any arguable jurisdictional error in the Tribunal's reasoning or procedures.
The application filed by the applicant inadequately completes the prescribed form, in particular by the total absence of any particulars, notwithstanding notes contained in the form which draw attention to the need for particularised grounds of jurisdictional error to be identified. It contains a short reassertion of his refugee claims, which is incapable of constituting grounds of jurisdictional error. There is also a general assertion:
Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.
But no particulars giving any meaning to that assertion are included, and I am unable to discern any argument which could establish that contention.
The applicant's affidavit filed with the application merely attaches the RRT decision, and asserts the applicant's claim to be a refugee.
His amended application, filed after having the benefit of the procedures to which I have referred above, contains one ground:
The Tribunal made the finding which is illogical.
The alleged illogical finding is not identified, and I am unable to identify any finding in the Tribunal’s reasons which could arguably be so described.
Five “particulars” are given, of which only one might be capable of establishing a jurisdictional error:
(a) The Tribunal has not taken or adequately taken into consideration that the applicant's claims that his relatives and family have been tortured simply because his race.
However I can see no arguable substance to that contention. In my opinion, the Tribunal clearly shows that it was fully aware of the claims made by the applicant, and for the reasons it gave was unable to be satisfied by them due to the absence of further information obtained from the applicant at a hearing.
The remaining “particulars” are no more than a reassertion of the applicant's general claims to be a refugee, and do not in my opinion raise or support an arguable ground of jurisdictional error.
The applicant had nothing to say to me today as to why I should not dismiss his case under r.44.12. In my opinion it is appropriate for me to exercise that power, since I am not satisfied that the application has raised an arguable case for the relief claimed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 7 June 2006
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