SZIIB v Minister for Immigration
[2006] FMCA 968
•20 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIIB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 968 |
| MIGRATION – RRT decision – Malaysian claiming persecution based on Chinese ethnicity – did not attend Tribunal hearing – no arguable case – application dismissed at show cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), rr.44.05, 44.12(1)(a)
Migration Act 1958 (Cth), ss.425A, 426A, 476
| Applicant: | SZIIB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 427 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 20 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms L Gazi |
| 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 |
SYG427 of 2006
| SZIIB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 9 February 2006 under rule 44.05, seeking an order that the respondents show cause why a remedy should not be granted in the exercise of the court's jurisdiction under s.476 of the Migration Act in relation to a decision of the Refugee Review Tribunal dated 21 December 2005 and handed down on 5 January 2006. The Tribunal affirmed a decision of a delegate refusing the applicant a protection visa.
The application was returnable at a first court date before me on
14 March 2006. The applicant attended on that day and was assisted by an interpreter. The nature of the proceeding was explained to him by me and in an information sheet, and he was given an opportunity to file an amended application and any affidavits, after being sent a bundle of relevant documents and a referral to a lawyer under the free advice scheme.
The applicant today claimed that he did not receive either of those things due his changing address without telling the court. However, in my opinion his case is clearly lacking in merit, and does not deserve the indulgence of a further adjournment.
I note that at the first court date, the applicant was told that his case might be dismissed at today's listing if I were not satisfied that it had raised an arguable case for the relief claimed.
The applicant's application for a protection visa claimed protection in Australia against return to his country of nationality, Malaysia. It attached a brief statement, in which he claimed to have experienced discrimination in that country due to his Chinese ethnicity. He claimed that this had prevented him becoming a Malaysian policeman. He claimed to have publicised his dissatisfaction by putting up "posters around against the government and the locals". He said: "eventually I was reported to the police and they looked everywhere for me. They went to my home at my parents' place to get me. Lucky I was not there when they went. My wife called me and asked me not to go home." He therefore came to Australia. He provided no supporting details or evidence of these claims to the Department, nor to the Tribunal when he sought review of the delegate's decision.
His application to the Tribunal did not appoint an advisor or authorised recipient, but requested the Tribunal to send correspondence about his application to his residential address at Auburn.
The Tribunal sent to that address a letter dated 24 November 2005 inviting the applicant to attend a hearing on 21 December 2005. The letter informed the applicant that:
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.
The applicant has not contested that he received that invitation. In my opinion, it clearly complied with the requirements of form and service set out in s.425A and the relevant provisions of the Act and regulations.
In its statement of reasons, the Tribunal referred to the sending of the letter and that it was not returned to the Tribunal. It noted that the applicant did not appear before the Tribunal at the appointed time, and said that pursuant to s.426A of the Act it had decided to make its decision on the review without taking any further action to enable the applicant to appear before it. I am satisfied that the Tribunal had that power and that its discretion to exercise it did not miscarry. I can see no arguable contention to the contrary available to the applicant.
The Tribunal's reasons for affirming the delegate's decision were:
There is 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 these events occurred. Because he did not attend a hearing, the Tribunal has been unable to test the applicant’s credibility in this regard. Therefore the Tribunal is unable to be satisfied that the applicant was in danger of being sought by the police with possible further adverse consequences to him.
Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of persecution should he return to Malaysia now or in the foreseeable future.
The Tribunal is unable to be satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Convention reason.
I can see no arguable error in the Tribunal's reasoning in that manner.
The applicant's application and his affidavit contained the following statements as the grounds of the application:
1. After my protection visa application was lodged with Department of Immigration and Multicultural and Indigenous Affairs the decision maker did not give me chance to provide more evidence to support my claims. However there was not enough time given. After I left my country and came to Australia I experienced a lot of difficulties including the language problems. It needs good English to communicate with the government agencies in Australia. However it’s not easy to find somebody to hep me. At the same time it’s extremely difficult to get evidence from my country and I have been worried my family, particularly my wife, would get into trouble if the Malaysian authorities find out they help me. Therefore it’s impossible to provide the required evidence within such a short time.
2. After have been discriminated in Malaysia for such a long time, I have developed a terrible habit that I could hardly trust any government agency and always think nobody likes me as a Chinese. I did not attend a hearing when invited by the Refugee Review Tribunal. I am afraid I would be detained and forced to go back to Malaysia to have more that kind of terrible experience. Should the Refugee Review Tribunal guarantee that I would not be detained in the hearing, I would have attended the hearing to provide more evidence. Unfortunately the Refugee Review Tribunal made the decision in a short time without getting more evidence. I believe the decision is unfair.
The applicant's explanations for deciding not to attend the Tribunal's hearing might be understandable, but they do not provide him with a reasonably arguable ground for establishing jurisdictional error by the Tribunal.
The applicant attended today, but had no argument to show me which could succeed in establishing an arguable case.
For the above reasons I am not satisfied that the application in this matter has raised an arguable case for the relief claimed, and I consider it is appropriate to dismiss the application under rule 44.12(1)(a).
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 10 July 2006
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