SZHVM v Minister for Immigration

[2007] FMCA 1200

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1200

MIGRATION – Where applicant did not respond to hearing invitation and did not attend hearing.

Migration Act 1958, ss.36, 65, 426A

Applicant: SZHVM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3687 of 2005

Judgment of: Raphael FM

Hearing date: 11 July 2007

Date of last submission: 11 July 2007

Delivered at: Sydney

Delivered on: 11 July 2007

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Ms L Clegg

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $3,600.00.

3. The name of the First Respondent be amended to Minister for Immigration & Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3687 of 2005

SZHVM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Indonesia. She arrived in Australia on 23 November 2004. On 22 December 2004 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 26 May 2005 a delegate of the Minister refused to grant a protection visa and on 28 June 2005 the applicant applied for review of that decision. On 18 August 2005 the Tribunal wrote to the applicant at the address that she had given in her application for review informing her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The Tribunal invited the applicant to a hearing on 18 October 2005. The applicant did not attend the hearing. On 5 October 2005 the Tribunal had phoned the applicant on her mobile telephone and left the Tribunal’s contact number with the phone messaging system. The applicant did not respond to the telephone message. When the applicant did not appear at the hearing the Tribunal determined to proceed pursuant to s.426A of the Migration Act 1958 (the “Act”).  On 20 October 2005 the Tribunal determined to affirm the decision under review and it handed that decision down on 15 November 2005.

2. The applicant claimed to be a person to whom Australia owed protection obligations on the basis of her imputed political opinion.  It appears that at the general election which was held in Indonesia in September 2004 she saw persons she believed to be connected with one of the political parties arrive at a polling booth in a van.  She saw that people got out of the van and took boxes from it and replaced them with boxes from inside the polling booth.  After the vote was counted she realised that there had been some sort of fraud in the voting system which could have been contributed to by the apparent switching of ballot boxes that she had witnessed.  The applicant reported this incident to the general election committee and claimed that the next day she was approached by some people who threatened to kill her if she did not keep quiet.  She also told some of her neighbours about what had occurred and says that a few days later she was kicked and punched by some men.  She went to stay with a friend but was asked by the friend to leave that house and it was recommended to her that she leave the country.  She claimed that if she returned she might be imprisoned or further persecuted.

3. It is fair to say that the independent country information bears out the existence of electoral fraud in Medan, which was the area in which she lived, but as the Tribunal noted:

   “The Tribunal needs to have greater detail of the events surrounding her reporting of what she allegedly saw, the events surrounding the people who allegedly menaced and attacked her and the events surrounding her allegedly reporting the matter to the general election committee.  Without such further evidence the Tribunal cannot be satisfied that there is a real chance the applicant might suffer serious harm should she return to Indonesia.”

4. The Tribunal’s decision was based firmly on a failure to be satisfied. It makes no findings about the applicant’s claims. Her attendance at the hearing was therefore essential because the provisions of the Act and in particular ss.36 and 65 require the Minister to be satisfied of certain matters before he can grant a visa. Before me today the applicant stated that when she was given an opportunity to appear she was sick. She says that she did not know the telephone number of the Tribunal and was not fluent in English. She has provided me with no evidence to support the alleged sickness. I am unable to accept that she did not know the telephone number of the Tribunal because she had received several letters from it, all of which contain its telephone number. Furthermore, the Tribunal had telephoned and left a message on her mobile. If the applicant had truly been ill she could have contacted the Tribunal even after the hearing because the decision was not handed down for some weeks and in all probability, if that had occurred, a new hearing date would have been given.

5. The Tribunal acted in this matter as it was entitled to under the Act. Its discretion to proceed under s.426A in the absence of any knowledge of the applicant’s alleged illness and having telephoned the applicant some days before the hearing to inquire as to why she had not completed the response to hearing invitation, did not miscarry. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $3,600. The name of the first respondent be amended to the Minister for Immigration and Citizenship.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: