SZIGQ v Minister for Immigration
[2006] FMCA 1826
•27 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1826 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant failed to attend Tribunal hearing – obligations under the Act complied with – no reviewable error. |
| Migration Act 1958, ss.425A, 426A, 441A(2) |
| First Applicant: | SZIGQ |
| Second Applicant: | SZIGR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG368 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 27 November 2006 |
| Date of last submission: | 27 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2006 |
REPRESENTATION
| The applicants appearing in person |
| Solicitor for the Respondent: | Ms N. Johnson of Sparke Helmore |
THE COURT ORDERS THAT:
The application is dismissed.
Both applicant’s pay to the first respondent $2,700 being the Ministers legal costs in the proceedings.
The first respondent prepare draft orders in this matter to be sent to my chambers by email.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 368 of 2006
| SZIGQ |
First Applicant
| SZIGR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 6 February 2006 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed the decision of the delegate for the Minister for Immigration & Multicultural Affairs not to grant the applicant a protection visa. The applicants are husband and wife, with only the first named applicant making specific claims under the Convention. Therefore, I refer to the first named applicant as the applicant.
The applicant was born on 22 February 1960 and claims to be from Indonesian and Chinese ethnicity. He has had nine years of education and can speak, read and write Indonesian. He was a small business owner from 1980 until 2005. His wife is in Australia with him while his two daughters are living in Indonesia (Court Book (“CB”) page 56).
The applicant arrived in Australia on 12 August 2005, and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 5 September 2005. In this application he claimed fear of persecution because of his Chinese ethnicity.
The application was refused by a delegate of the first respondent on
26 September 2005. On 31 October 2005 the applicant filed an application for a review of the decision of the minister's delegate with the Refugee Review Tribunal.
On 9 November 2005, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 5 December 2005.
The applicant says that he did not open the post box where that letter went to until the 21st day of some month which he cannot remember.
Pursuant to s.426A of the Migration Act 1958 (“the Act”), the Tribunal decided to make its decision on the review without taking any further action to enable to the applicant to appear before it (CB page 57).
On 3 January 2006, the Tribunal handed down its decision dated
6 December 2005, affirming the decision of the Minister's delegate refusing to grant the applicant a protection visa. In considering the applicant's claims the tribunal found:
1)That the applicant was a national of Indonesia (CB page 56)
2)As the applicant did not attend the hearing, his claims could not be tested by the tribunal (CB page 57)
The applicant claimed that as an ethnic Chinese he had been targeted by native Indonesians since his youth. In May 1998 the ethnic Chinese were treated badly. In May 1999 there was a riot. Shops were looted, buildings burnt and some lives lost. Churches were also damaged and burnt. The looters were not punished. There has been sexual harassment and horrifying sex acts against the Chinese.
The applicant claimed that the locals made the ethnic Chinese a scapegoat for every incident, and that human rights have been neglected and violated; that on every corner of the road in the district of Jakarta is written: “Pribumi Muslim Kill Chinese”. He further claimed that the authorities have not provided any precautionary measures, and that the risk of being killed by a mob is high.
The applicant stated he left Indonesia as he could no longer live in fear of harm and a threat to his life (CB page 57).
The Tribunal found nothing to support these claims, other than the applicant's unsubstantiated assertions. There are insufficient particulars provided by the applicant to enable the tribunal to be satisfied that the applicant was involved in any of these events, and because he did not attend the hearing, the Tribunal has been unable to test his credibility in this regard. Therefore, the Tribunal was unable to be satisfied that the applicant was the subject of racial attacks.
Further, the Tribunal was unable to be satisfied that the applicant was subjected to serious harm by the native Indonesians, or that he sought and was denied protection by the Indonesian authorities (CB page 58).
The Tribunal was unable to be satisfied on the evidence before it that the applicant has a well founded fear of persecution and therefore was not satisfied that the applicant was a refugee.
The applicant then filed the application to this Court seeking judicial review of the tribunal's decision pursuant to the Migration Act 1958.
The application
In his application, the applicant set out grounds as follows:
i)The decision involved an error of law in that there was no evidence or the other materials to justify the making of the decision.
ii)The Tribunal based it’s (sic) findings on the information, or lack of information, contained in the application for a visa, and was required to explain why the information is relevant. The Tribunal failed to so act was a jurisdictional error.
iii)I was really involved in those events I mentioned.
Amended application
In his amended application filed on 27 April 2996, the applicant set out three grounds as follows:
1.The discrimination against the ethnic Chinese still happened until now such as May 1999 riot. In May 1998, ethnic Chinese Indonesian were treated cruelly and this was the beginning of the disaster. The buildings were burnt, the shops were looted, the churches were being damaged and burnt. Besides, there was a very reliable rumour that there may be another riots happen this year because the Indonesian economy is going down.
2.It may cause more properties being damaged and lost of lives. I left Indonesia because I can no longer live in fear of harm and threat to my life. I am afraid to go back as the possibility of being killed by the mob is high. They painted “Pribumi Muslim, Kill Chinese” on every corners of the road in the district of Jakarta.
3.I know Australia has signed and ratified 1951 UN Convention relating to the Status of refugee and subsequent protocol. Consequently, it has assumed certain obligation towards people who meet the definition of refugee. I believe I meet the definition of refugee because of my horrified experience.
The task for this Court in an application for judicial review is to determine whether the Refugee Review Tribunal has made an error of law including whether it has failed to give the applicant a fair hearing.
By letter to the applicant dated 9 November 2005 the Tribunal stated: “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. We now invite you and any persons listed above to come to a hearing of the tribunal to give oral evidence and present arguments in support of your claims. You can also ask the tribunal to obtain oral evidence from another person or persons”.
The letter then set out that the hearing would occur on 5 December 2005 (CB 47)
The decision indicates that the matter was heard on 5 December 2005 in compliance with what was stated in that letter. The letter continued: “The tribunal will only change this hearing date for good reasons. If you think you might not be able to attend the hearing you must contact the tribunal immediately. 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” (CB 47)
The applicant failed to attend the hearing. The letter was sent to the applicant at the address he provided in his application for review.
The letter complied with ss.425A, 426(A) and 441A(4) of the Act.
The Act provides in s.426A(1):
If the applicant is invited under s.425 to appear before the tribunal and does not appear before the tribunal on the day on which or at the time and place at which the applicant is scheduled to appear the tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal stated that the applicant did not appear, and in the circumstances and pursuant to s.426A of the Act, the Tribunal decided to make its decision without taking further action to enable the applicant to appear before it. The Courts finds that the Tribunal made no error of law in doing so.
The letter to the applicant told him that a decision could not be made in his favour on the material then before the Tribunal. He was told when the hearing would be, and it was held on that day. The applicant was advised that if he did not attend the hearing a decision could be made in his absence.
The applicant was not able to give clear submissions as to when the letter was obtained from his post box and I do not accept that the letter was late in arriving at his post box address. The Court finds no breach of natural justice in what the Tribunal did. The Court finds no error of law in what the Tribunal did.
The Tribunal reached the following conclusions in its decision:
“Having considered the evidence as a whole the tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the refugee's convention as amended by the refugee's protocol. Therefore, the first named applicant does not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa. No specific convention claims were made by the or on behalf of the applicant's wife. The fate of her application therefore depends on the outcome of the first named applicant's application. As the first named applicant cannot be granted a protection visa it follows that the applicant's wife cannot satisfy the alternative criterion set out in s.36(2)(b) of the Act and cannot be granted a protection visa. The tribunal affirms the decision not to grant protection visas” (CB 58)
The Court finds that the Tribunal's decision is a privative clause decision and has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere. Accordingly, the application is dismissed.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Dian Neligan
Date: 27 November 2006
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