SZIJA v Minister for Immigration

[2006] FMCA 610

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIJA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 610

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as failing to disclose an arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.426A

Applicant: SZIJA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG490 of 2006

Judgment of: Driver FM

Hearing date: 3 May 2006

Delivered at: Sydney

Delivered on: 3 May 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Hanstein
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG490 of 2006

SZIJA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”).  The RRT decision was handed down on 17 January 2006.  The show cause application was filed in this court on 15 February 2006.  The applicant asserted notification of the decision on 19 January 2006.  On that basis I find that the application was filed within time.

2. The applicant is from India.  He arrived in Australia as a student in August 2005 and applied for a protection visa on 12 September 2005.  That application was refused by a delegate of the Minister and the applicant sought review from the RRT.  The applicant was invited to a hearing before the RRT by letter dated 16 November 2005.  That letter is reproduced on pages 54 and 55 of the court book, which I accepted as evidence for the purposes of today's hearing.  The letter states that the RRT had considered all of the material before it in relation to the application but was unable to make a decision in the applicant's favour on that information alone.  The applicant initially responded stating that he did wish to come to a hearing (court book, page 58).  Subsequently, however, on 15 December 2005 the applicant wrote to the RRT stating that he noted his hearing was to be on 19 December 2005 and continuing:

   But unfortunately I can't attend the hearing because I am financially struggling very hard and mentally depressed.  I would request you to kindly look into my case and take the appropriate decision.

3. The RRT considered the material it had before it and the applicant's letter of 15 December 2005.  The presiding member decided to proceed in the applicant's absence and decided that the material before him was insufficient to support a favourable decision.  The presiding member found (court book, page 72) that he was unable to be satisfied on the evidence before him that the applicant had a well‑founded fear of being persecuted for a Convention reason if he returned to India.

4. This matter came before me on 10 March 2006. At that time it was not apparent to me whether the application disclosed an arguable case. I made directions requiring or permitting the parties to file material and listed the matter for a hearing before me today, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The applicant, in accordance with my procedural directions, elected to file an amended application on 26 April 2006. He told me from the bar table that he was assisted in the preparation of that application by Mr Robert Wilson of counsel. He told me that Mr Wilson had indicated a willingness to act for him but that he was unavailable until after 4 September 2006. The applicant told me that Mr Wilson was the only legal practitioner he had consulted. I understood the applicant to be seeking an adjournment until September. I declined to adjourn the proceeding on the basis that I had sought to explain the significance of today's hearing to the applicant previously, both orally and through the Court's information brochure that had been provided to the applicant in the Hindi language. I formed the view that the applicant had had sufficient opportunity to arrange legal representation and that an adjournment until September was not called for simply because his counsel of choice was unavailable until that time.

5. The amended application contains two grounds.  The first is that the RRT erred in that it did not set out in its reasons for decision, dated 21 December 2005, adequate reasons for holding that it was unable to be satisfied that there was a real chance that the applicant would be persecuted by reason of his political opinion or social group membership, should he return to India.  The particulars are that the evidence before the RRT was capable of establishing that the applicant was in fact a refugee.  The RRT (court book, pages 71 and 72) did not explain why it was not satisfied on this evidence.  It did not reject this evidence which was both cogent and plausible.

6. The second ground is that the RRT erred in that it did not determine the substantial matters that were in issue before it and thereby failed to properly exercise its jurisdiction.   The particulars are that the RRT noted the applicant's written evidence that two members of his party had been killed and that false claims against party members had been filed which had resulted in gaol terms for those members.  The RRT did not reject this evidence nor determine that it was not cogent nor that it lacked credibility.  However, it made no findings on this evidence which was capable of establishing that the applicant was in fact a refugee.

7. The two grounds are related.  Both are an attack upon the RRT’s reasoning (court book, pages 72 and 73).  It is apparent from a reading of the findings and reasons for decision of the RRT (commencing court book, page 70) that the presiding member was not satisfied that the material advanced by the applicant was sufficient to persuade him that the applicant had a well‑founded fear of persecution in India.  The presiding member made no adverse credibility findings.  The presiding member was simply concerned that the applicant had provided insufficient detail of his claims to justify the grant of a visa.  The contentions that the RRT did not provide adequate reasons for its finding or that it did not determine the substantial matters in issue before it, cannot be sustained.

8. The reasons for decision of the RRT are clear if brief.  The presiding member considered the applicant's claims and found them unpersuasive because of lack of detail.  The finding was open to the presiding member on the information before him.  Plainly the outcome might have been different if the applicant had attended the hearing to which he was invited.  There might be an issue of whether the procedure followed by the RRT was fair having regard to the terms of the applicant's letter on page 60 of the court book.  No issue of breach of any statutory duty or breach of the principles of procedural fairness is alleged in the amended application. 

9. Under the rules of court relating to migration applications[1], applicants are limited to the grounds advanced in their applications.  The amended application has been prepared with the assistance of counsel.  In my view, in these circumstances, it would be wrong of me to permit this application to proceed further on the basis of a ground which has not been advanced. 

   [1] rule 44.13, Federal Magistrates Court Rules

10. Even if an assertion of a want of procedural fairness had been made in the amended application it would almost certainly fail.  The applicant, in his letter dated 15 December 2005, did not seek an adjournment of the RRT hearing.  He simply asked the RRT to look into his case and take an appropriate decision.  Most people would regard that statement as an indication that the applicant had decided not to attend the hearing and that he was requesting the RRT to take a decision in his absence.  However, the presiding member appears to have given the applicant the benefit of the doubt and considered the letter as if it were a request for an adjournment to a later date. 

11. The presiding member concluded (court book, page 72) that he was unable to be satisfied that the applicant was suffering from a medical condition precluding him from attending the scheduled hearing. Having considered the matter and made a reasoned decision the presiding member was entitled to proceed in the absence of the applicant pursuant to s.426A of the Migration Act 1958 (Cth).

12. I conclude that the application as amended fails to disclose an arguable case. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

13. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in accordance with the Court scale. The applicant doubts his ability to pay a costs order, but that is not a reason for the Court to refrain from making one. Scale costs in this case would be an amount of $2,500. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item (1)(b) of part 2 of schedule 1 of the Federal Magistrates Court Rules.

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

Associate: 

Date:  16 May 2006