SZHWS v Minister for Immigration
[2006] FMCA 813
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHWS v MINISTER FOR IMMIGRATION | [2006] FMCA 813 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision affirming delegate’s decision not to grant a protection visa – applicant did not attend Tribunal hearing – applicant did not attend Federal Magistrates Court hearing. |
| Migration Act 1958 (Cth), ss.424A, 426A Federal Magistrates Court Rules r.13.03A(d) |
| SZEEU v Minister for Immigration & Multicultural Affairs [2006] FCAFC 2 |
| Applicant: | SZHWS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3726 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 May 2006 |
| Date of Last Submission: | 5 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3726 of 2005
| SZHWS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal that was signed on 11th November 2005.
The applicant resides at Shepparton in the State of Victoria, and I note that the Tribunal hearing took place in Melbourne. For some reason not explained by the applicant, he commenced proceedings in Sydney.
The applicant consulted a solicitor who appeared for him and acted for him for a time, but that solicitor has since filed a notice of ceasing to act.
The applicant has not attended Court today.
I am asked by counsel for the respondent Minister to proceed to a hearing of the application on its merits under the provisions of Rule 13.03A(d). In my view, that is an appropriate course to be taken, and I propose to do just that.
The applicant is a citizen of India who arrived in Australia on
28th February 2005. He applied for a protection visa, but this was refused by a delegate of the Minister on 5th May 2005.
Just over a month later on 6th June 2005 the applicant sought a review of that decision from the Refugee Review Tribunal. The Tribunal wrote to the applicant on 16th September advising him that it was unable to arrive at a decision in his favour on the material before it, and invited him to attend the hearing on 4th November 2005.
The Tribunal, through one of its staff, attempted to contact the applicant by telephone through his authorised recipient. The Tribunal was informed that the authorised recipient had been unable to contact the applicant.
The Tribunal completed a no reply to hearing checklist, or the Tribunal's employee did, and later on another employee of the Tribunal, on 27th October, spoke to the applicant. That person was informed by the applicant that the applicant did not intend to attend the hearing. The Tribunal, when the applicant did not attend the hearing on
4th November 2005, took the decision to proceed to deal with the matter under the provisions of s.426A of the Migration Act.
On 11th November the Tribunal affirmed the decision of the delegate not to grant a protection visa.
The Tribunal's findings and reasons show that the Tribunal was satisfied that the applicant had travelled to Australia on a valid Indian passport. The Tribunal assessed his claims against India as his country of nationality. The Tribunal noted that the applicant claimed that he had left India because he had been detained by the police in
March 2003 on suspicion of being connected with terrorists.
The Tribunal was not satisfied that the evidence provided by the applicant was sufficient to establish the applicant's claims.
The Tribunal set out its findings and reasons on pages 137 to 139 of the Court book, and the Tribunal noted that it was not satisfied on the limited evidence before it that the applicant's use of an agent to obtain a visa was in order to avoid the authorities, nor was the Tribunal satisfied that the applicant had been detained by the police in the past because of a suspected association with terrorists.
The Tribunal did not accept that if the applicant returned to India he would be of interest to the authorities because of a past incident or for any other reason, and did not accept that he would be under police surveillance on his return because of any association with terrorists.
The Tribunal noted that the applicant had been put on notice that the Tribunal was not able to make a favourable decision upon the evidence that he had provided, and that the applicant did not provide any further information despite having been given ample opportunity to do so, and the applicant did not attend the hearing that was arranged. In my view, no jurisdictional error has been disclosed.
Counsel for the respondent refers me to the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural Affairs [2006] FCAFC 2, and particularly the decision of Alsop J.
Counsel submits, and I believe correctly, that this case affords an example where despite the applicant's non appearance at the hearing, the protection visa application information itself was not the reason for the Tribunal's lack of satisfaction. Rather, it was the failure by the applicant to sufficiently make out his case which brought about the Tribunal's conclusion. Accordingly, it is submitted, and correctly, that there is no breach of s.424A(1), no jurisdictional error in this respect.
I have read through the decision thoroughly and I am not satisfied that any jurisdictional error can be discerned. It is abundantly clear that the applicant, who did not attend the Tribunal hearing, and has not attended the hearing before this Court, was unsuccessful in his application to the Tribunal because he failed to provide sufficient information. It is up to an applicant to satisfy the Tribunal that the applicant meets the criterion for a visa under sub-s.36(2) of the Migration Act.
As has been made quite clear by reference to s.65 of the Act, if an applicant satisfies the Minister, or in this case the Tribunal, that the applicant meets the criteria for a visa, the Minister or the Tribunal must grant the visa. But if the Tribunal does not reach that stage of satisfaction, the Tribunal, as is the case here, has no option but to refuse the visa.
I am satisfied that the Tribunal was not satisfied because of the paucity of information provided by the applicant. The Tribunal, in my view, acted correctly in law in refusing the application for a visa.
There is no reviewable error, the application will be dismissed.
There is an application for costs. In my view it is appropriate that an order for costs should be made in favour of the first respondent Minister. The respondent was obliged to prepare the case, because it was a defended hearing. The respondent briefed counsel, counsel has prepared the case, and has attended on the hearing of the matter, and in fact I have heard the matter to finality and I have relied of course on the submissions prepared by counsel for the applicant amongst other material.
In my view, this is an appropriate matter for an order for costs, the sum of $4,200.00 inclusive of counsel's fees is a relatively modest amount, in my view.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 5 June 2006
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