SZIJQ v Minister for Immigration
[2006] FMCA 977
•20 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 977 |
| MIGRATION – RRT decision – Russian claiming religious persecution – did not attend Tribunal hearing – no arguable case – application dismissed at show cause hearing. |
| Migration Act 1958 (Cth), ss.424A, 425, 426, 426A(1), 474, 476, 483A Federal Magistrates Court Rule 13.10(c), 44.05, 44.12(1)(a) |
| Applicant: | SZIJQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 528 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 G Broderick |
| 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 |
SYG 528 of 2006
| SZIJQ |
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 for an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal dated 30 December 2005 and handed down on
24 January 2006. The Tribunal affirmed a decision of a Delegate refusing to grant a protection visa to the applicant.
The application was given a first Court date before me on 21 March 2006, when the applicant attended and was assisted by a Russian interpreter. The nature of the proceeding was explained to him by myself and in an information sheet. I made orders giving him an opportunity to file an amended application and affidavit evidence, after receiving a bundle of relevant documents and a referral for free legal advice. I informed him, when setting the matter down for a hearing under r.44.12 today, that his application might be dismissed if I were not satisfied that it had raised an arguable case for the relief claim.
The applicant's application for a protection visa contained very vague claims for seeking protection in Australia so that he did not have to return to his country of nationality, Russia. He claimed that he had left Russia because he was persecuted by reason of his religion, being a Jehovah's Witness. He claimed that he and members of his Church had been beaten by orthodox fanatics and police officers, that he had been threatened with death, and that if he returned to Russia he would not have a free opportunity to attend Church. No supporting evidence or details of the events referred to was given to the Department, nor on appeal to the Refugee Tribunal.
The applicant's application for review by the Tribunal did not appoint an agent, nor an authorised recipient for correspondence, but requested the Tribunal to send correspondence to the applicant at his residential address at Fairfield. The form contained a declaration by an interpreter, Yevgen Kyselov, that the contents of the form had been interpreted to the applicant.
The Tribunal, by letter dated 5 December 2005, sent to that address an invitation to the applicant to attend a hearing on 3 January 2006. The letter informed 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.
The letter informed the applicant that if he did not attend, the Tribunal could make a decision without further notice, and also requested the applicant to return a ‘response to hearing invitation’ form.
Such a form was sent to the Tribunal, it has the applicant's signature upon it and is dated 19 December 2005. It informed the Tribunal that the applicant did not want to come to a hearing, and said:
I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The bundle of relevant documents also contains two letters sent by the Tribunal on 9 December to the applicant, requesting additional information, and inviting his comments on a particular of adverse information. All of the Tribunal's letters indicate that they enclosed a multilingual advice brochure, but the contents of that brochure is not in evidence before me.
A file note from the Tribunal's file records a conversation on
22 December 2005 between a Tribunal officer and somebody who identified himself as the applicant, using the telephone interpreter service. That person confirmed receipt of the Tribunal's letters, and was warned of a need to prepare responses to the letters and bring them to the hearing. I would infer from the file note and the CMS case notes that this conversation occurred before the Tribunal’s case officer received the applicant’s response to hearing form.
In its statement of reasons, the Tribunal referred to the correspondence sent to the applicant, and to the conversation with the Tribunal officer. It noted that the applicant did not appear before the Tribunal at the appointed hearing.
Its reasons for affirming the Delegate appear in the following paragraphs:
The applicant’s claims relate to his being a member of the Jehovah’s Witness church. There is nothing to support these claims other than his unsubstantiated assertions. There are insufficient particulars provided by the applicant to enable me to be satisfied that he is a true adherent to the Jehovah’s Witnesses’ beliefs. Because he did not attend a hearing, the Tribunal was unable to ascertain the level of his commitment to the Jehovah’s Witnesses. As a result, the Tribunal is unable to be satisfied that he is a member of the Jehovah’s Witnesses.
As a result, the Tribunal is not satisfied that the applicant has been of any adverse interest to the Russian authorities or members of the Russian Orthodox church, and it also is not satisfied that his claim that if he returns to Russia he will become a victim of persecution.
Accordingly, the Tribunal is unable to be satisfied from the evidence before it that the applicant faces a real chance of persecution should he return to the PRC now or in the foreseeable future.
I am unable to identify any arguable jurisdictional error in the procedures followed by the Tribunal, or in its reasoning.
The application filed in this Court contains the following grounds and particulars:
The Tribunal misunderstood the nature of its jurisdiction and in consequence applied a wrong test, misconceived its duty.
Particulars: The Tribunal did not assess claims for protection visa against the independent country information and therefore has not fulfilled its task as it prescribed by law.
There is no substance shown to support these contentions, and the applicant has not been able to give them substance in any written or oral submissions to me. In my opinion, it is unarguable that the Tribunal did address the applicant's claims, such as they had been presented, and that it properly performed its jurisdiction by being unable to arrive at findings of fact by reason of the lack of detail in the claims and the applicant's absence from the hearing.
The applicant's affidavit in support of the application contained only the following two statements:
The Tribunal failed to consider the independent country information on Russia available to the Tribunal.
Without considering that information the Tribunal had no basis to make its conclusion on whether the applicant’s fear of persecutions is well-founded.
In my opinion, no arguable case arises from these contentions, since the Tribunal plainly was not obliged to consider independent country information due to the path of reasoning followed by it.
The applicant has filed an amended application containing a further ground that “the Tribunal failed to provide me with procedural fairness”. One particular is given:
The Tribunal failed to inform me of the hearing date before the Tribunal in a way that I would be able to understand.
No affidavit evidence in support of this procedural fairness ground has been filed. On the material before the Court which I have referred to above, it is, in my opinion, unarguable that the Tribunal did follow the statutory procedures required of it by ss.425 and 425A in relation to the sending of an invitation to a hearing. This ground therefore cannot succeed.
In his oral submissions to me today, the applicant made unsworn statements that he did not read any of the documents he signed, that it was not he who had the conversation with the Tribunal officer, and that he was poorly or wrongly advised by friends. However, assuming that the applicant could lead sworn evidence to this effect at a final hearing, in my opinion it would not assist him to establish an arguable case. Since, the Tribunal has both complied with the statutory provisions in relation to the sending of an invitation to a hearing, and also received a signed consent or waiver of the right to a hearing, the Tribunal had power to proceed without taking further steps to allow the applicant to appear (see ss.426A(1) and 425(2)(b)). I can see no arguable case raised by any of the applicant’s documents or statements to the court.
I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it is appropriate for me to exercise my power to dismiss the case at an interlocutory stage under r 44.12(1)(a).
I certify that the preceding eighteen (18) 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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