SZILT v Minister for Immigration - [2006] FMCA 992

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZILT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 992

MIGRATION – RRT decision – Indian applicant – did not attend Tribunal hearing – no arguable case – application dismissed at show cause hearing.

Migration Act 1958 (Cth), ss.426A(1), 476

Federal Magistrates Court Rules, rr.44.05, 44.12, 44.12(1)(a)

Applicant:

SZILT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 678 of 2006

Judgment of:

Smith FM

Hearing date:

4 July 2006

Delivered at:

Sydney

Delivered on:

4 July 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the First Respondent:

Ms Rose

Solicitors for the Respondents:

Phillips Fox

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 $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 678 of 2006

SZILT

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 3 March 2006 under r.44.05, seeking an order that the respondent show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 17 January 2006 and handed down on 2 February 2006. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa.
The application was returnable before me at a first Court date on 28 March 2006. The applicant attended on that day and was assisted by an Urdu interpreter. I made orders allowing him to receive a referral to a lawyer for free advice after receiving a bundle of relevant documents. I gave him leave to file an amended application by 23 June 2006 with any supporting affidavits. I listed the matter today for a hearing under r.44.12, and advised the applicant that his application might be dismissed if I was not satisfied that it had raised an arguable case for the relief claimed.
According to the Court's file, the applicant was referred to a solicitor on the legal panel on around 9 May 2006. The applicant agrees that he received the referral letter containing the contact details of the solicitor, but claimed today that he never received advice, notwithstanding seeking to contact the solicitor for that purpose. This is at odds with a letter from the solicitor informing the Court that advice was given to the applicant on 31 May 2006.
The applicant sought an adjournment of his hearing today to allow him to seek further advice from lawyers. However, in the circumstances which I shall describe below, I do not consider that I should adjourn the application further. The applicant's application, in my opinion, clearly has no merit, and he has had sufficient time before today to obtain whatever advice he could.
The applicant lodged his application for a protection visa on 26 September 2005 shortly after arriving from his country of nationality, India. In his application form he made the following claims as to his reasons for seeking protection in Australia:
Why did you leave that country?
I belong to a Muslim family living in [identified] area of Hyderabad. I left India for fear of my life in the hands of local Bhastiya Janata Party which is a ultra nationalist party opposed to the more secular party of congress and Manjlis-e-itehad ul muslimeen. I support Manjlis-e-itehad ul muslimeen party which is why local Telugu desam party and BJP wishes to physically harm me. Because of my activities as a member of Muslim community and members of Manjlis-e-itehad ul muslimeen Party members who are also associated with Rashtra Seva Sung (RSS) will physically harm me.
He gave no better details of these events elsewhere in the application form. At no time did he provide the Department or the Tribunal with details of what he claimed to have happened to him in India or any corroborative evidence. He appears to have forwarded to the Department some general information concerning India, whose relevance to his claims was not clear.
A delegate refused the application on 3 November 2005, and the applicant filed an application for review. In that application, he did not appoint an agent and requested that correspondence should be sent to his postal address, which was also his residential address at Narrabeen.
The Tribunal sent to that address an acknowledgement of the application, inviting the applicant to send “any documents, information or other evidence you want the Tribunal to consider”.
A similar invitation was contained in a letter sent to the applicant at his nominated address on 9 December 2005. That letter also 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.
It invited the applicant to attend a hearing on 10 January 2006 at 10 am. The letter asked the applicant to complete a "response to hearing invitation" form. This was not received, but a Tribunal officer attempted to telephone the applicant. The officer received a call from the applicant which, according to the Tribunal's notes, “confirmed his attendance. Urdu interpreter was requested”.
However, the Tribunal in its reasons handed down on 2 February said that the applicant did not attend at the appointed hearing. It said:
He did not contact the Tribunal either before or after the hearing to explain his absence. One week has elapsed since the scheduled hearing and there has been no communication from the applicant. Under the circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant in his statements to me today did not seek to contest that he did not contact the Tribunal to explain his absence from the hearing. He said that his absence was because he was feeling ill on the day of the hearing, but did not present any evidence of this to the Tribunal or the Court.
In my opinion, there is no argument available to the applicant which could show that the Tribunal did not have the power to proceed under s.426A(1), or that its decision to use that power has miscarried.
In its statement of reasons, the Tribunal referred to the vague claims made by the applicant in his protection visa application. It concluded:
The applicant's claims are very vague and lacking in detail, to the extent that the Tribunal cannot determine the facts of the matter. The Tribunal put the applicant on notice in writing that it was unable to make a decision in his favour on the basis of the available material. The applicant did not take the opportunity offered to him to attend the hearing and present his case orally.
On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.
I can see no arguable ground of jurisdictional error which could be available to the applicant in relation to the Tribunal's reasoning or procedures.
In his application filed in this Court, the applicant stated as the grounds of the application:
Refugee Review Tribunal did not take my extraordinary circumstances into account.
I am a genuine refugee in need of protection (A separate account for each of the grounds is enclosed).
There is no arguable substance to the contention that the Tribunal did not take into account the applicant’s claims, such as they were.
The affidavit filed by the applicant in support of his application stated:
I have been continually persecuted by BJP and TDP parties in Andhra Pradesh in India. My appeal with RRT did not take all political situations in India. I can produce more evidence in support of my claim if asked by the Honourable Court.
However, these contentions could not win him his case in this Court, since it is not the function of the Court to decide if he is a refugee nor to receive evidence of this which was not presented to the Tribunal.
Taking into account all the material before the Court and the statements made by the applicant today, including in support of his request for adjournment, I consider that there is no prospect that the applicant could raise an arguable case for the relief claimed, and that it is appropriate to dismiss his application today under r.44.12(1)(a).

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 17 July 2006