SZIDO v Minister for Immigration - [2006] FMCA 920

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIDO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 920

MIGRATION – RRT decision – Malaysian claimed discrimination for Chinese ethnicity – did not attend hearing – no arguable case raised – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.05, 44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.424A(1), 426A(1), 476

SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195

Applicant:

SZIDO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG175 of 2006

Judgment of:

Smith FM

Hearing date:

13 June 2006

Delivered at:

Sydney

Delivered on:

13 June 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Mansour

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

SYG175 of 2006

SZIDO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under r.44.05 of the Federal Magistrates Court Rules 2001 (Cth) seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 22 November 2005. The Tribunal affirmed the decision of a delegate refusing to grant him a protection visa.
The application was given a first court date before me on 8 February 2006, which the applicant attended with the benefit of a Mandarin interpreter. I explained to him the nature of the proceedings, and he was given a written information sheet. My orders gave him the opportunity to obtain free legal advice, and this was given after receiving a bundle of relevant documents. He was given leave to file an amended application and any evidence relied upon by 26 May 2006, but has not filed anything.
I explained to the applicant at the first court date that his case was listed today for a hearing under r.44.12, and that his application might be dismissed if I were not satisfied that it had raised an arguable case for the relief claimed.
The applicant’s application for a protection visa contained a brief typed statement explaining why he did not wish to return to his country of nationality, Malaysia. He claimed to have experienced racial discrimination at school by reason of his Chinese ethnicity. He said: “My life as a student was a nightmare. After I graduated from high school, I did not choose to receive higher education, fearing that such nightmare would continue”. He claimed to have received harsh treatment in his employment as a result of being a Chinese person, and said: “I have lost my faith on Malaysia”.
No further details or corroboration of the discrimination which he feared was provided to the Department nor the Tribunal.
In his application for review by the Tribunal he did not nominate an agent or recipient for correspondence, and asked the Tribunal to send correspondence to his residential address at Bexley.
The Tribunal sent a letter to him at that address dated 21 October 2005. The letter told the applicant: “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”. It invited him to attend a hearing on 18 November 2005, and told him: “If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice”. The applicant was invited to send any new documents or written arguments he wanted the Tribunal to consider. Similar invitations had been given to the applicant on previous occasions, and the applicant was sent a multilingual information brochure giving him contact details.
In its statement of reasons the Tribunal said that no response to the invitation was received by it, and the applicant did not attend the hearing. The Tribunal proceeded under s.426A(1) to make its decision on the review without taking any further action to enable the applicant to appear. In my opinion, no arguable contention is open to the applicant that the Tribunal did not have that power, nor is there any material before me nor contention made by the applicant that its exercise of discretion has miscarried.
The Tribunal’s reason for affirming the delegate’s decision was that the applicant’s protection visa claims were “vague and lacking in detail”. It concluded:
On the evidence before it, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for reasons of his Chinese race. The applicant has not claimed to fear persecution for any other Convention reason and no other reason is suggested on the evidence before the Tribunal. Overall, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason if he returns to Malaysia.
I can see no arguable jurisdictional error in the Tribunal reasoning in that manner.
The applicant’s application contains one ground of review which contends that the Tribunal was in breach of s.424A(1), with the following particulars:
Particulars
The Tribunal pointed out that the applicant “does not indicate whether he was paid very little by his Malay boss because he was Chinese or because he was subject to pay conditions that applied to all employees in the business.” This information is important in deciding whether the applicant has experienced persecution in Malaysia and thus the applicant should be invited to comment on it.
However, in my opinion the Tribunal’s reference to the limited details in the applicant’s visa application does not show it using information from that application as the reason or part of the reason for affirming the delegate’s decision. The Tribunal’s reference to the lack of detail explained something that the Tribunal would have wished to have discussed with the applicant at a hearing, and the Tribunal’s reason for affirming the delegate’s decision was that it was left with insufficient material due to his absence. The situation in my opinion falls clearly within the discussion of Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801. I consider that the ground raised in the application is not reasonably arguable in the face of Federal Court authorities such as these.
The applicant today explained his absence from the hearing as being that he was told by a friend that he might be arrested if he attended the Tribunal hearing, and that fear of this caused him not to attend. However, he did not at all suggest that the Tribunal was responsible for that fear, nor that the Tribunal was aware of anything in circumstances that raises any doubt about its exercise of its power to proceed under s.426A(1).
On all the material before me, I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it appropriate for me to exercise the Court’s power to dismiss the application at an interlocutory stage under r.44.12(1)(a).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 July 2006