SZJCJ v Minister for Immigration
[2006] FMCA 1665
•31 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJCJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1665 |
| MIGRATION – RRT decision – South Korean with vague claims – did not attend hearing – no arguable case – application dismissed at show‑cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.426A(1), 476
| Applicant: | SZJCJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2035 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 31 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms D Watson |
| 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 $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2035 of 2006
| SZJCJ |
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 25 July 2006, seeking an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 May 2006 and handed down on 22 June 2006. The Tribunal affirmed a decision of a delegate made on 7 March 2006 which refused to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 22 August 2006. The applicant appeared and was assisted by a Korean interpreter. The nature of the proceeding was explained to him by me and in an information sheet. I allowed the applicant until 20 October 2006 to file an amended application and any additional evidence, after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that his application might be dismissed at today’s listing if it did not raise an arguable case.
The applicant has received legal advice, and has filed an amended application to which I shall refer below. He appeared today and the Minister’s submissions were explained to him in writing and orally.
The applicant is a national of South Korea who arrived in Australia in November 2005. He lodged an application for a protection visa on 5 January 2006 without any identified assistance. Attached to the application was a brief, typed statement claiming that his parents had been arrested and put in prison in 1998 after participating in a human rights demonstration. He claimed that he attended such demonstrations “many times”, and:
I have heard from my friends that the police was collecting my information. I realized that the police was preparing to prosecute me. I came to Australia to avoid prosecution and a risk of being jailed in Korea.
No details of these claims were given, and no corroboration was provided to the Department or to the Tribunal.
The applicant’s application for review did not appoint an agent or authorised recipient, but requested that correspondence should be sent to the applicant at an address at Epping.
By letter dated 1 May 2006 sent to that address, the Tribunal 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 invited the applicant to attend a hearing on 29 May 2006, and informed the applicant that if he did not attend the Tribunal could make a decision on the case without further notice.
The Tribunal in its statement of reasons said that no response was received to the letter, that the applicant did not appear, and that the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
I can see no arguable ground for finding that the Tribunal was not empowered by the provisions of s.426A(1) of the Migration Act to proceed in this manner.
The applicant today informed me that he had unfortunately not received the letter of invitation, and requested a second opportunity to attend before the Tribunal. However, he has not presented any evidence which could establish a jurisdictional error which would allow me to order that.
The Tribunal’s reasons for affirming the delegate’s decision were short:
The applicant has made a general assertion that he supports “human rights”. He has not indicated that he himself has ever suffered harm amounting to persecution for a Convention reason. He claims that the police intend to prosecute him, but has offered no support for this assertion, nor specified for what reason – if any – they would prosecute him. On the material before it, the Tribunal is unable to establish the facts of the matter and assess whether they are relevant to any claim for refugee status.
The Tribunal notes that the applicant was put on notice, in writing, that it was unable to make a favourable decision on the material before it. The applicant has not submitted further information, nor has he taken the opportunity offered to him to present his claims personally at hearing.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention.
I can see no arguable jurisdictional error in the Tribunal reasoning in this manner.
His original application contained three grounds:
1.The Tribunal did not consider my application in my favour.
2.I face a risk of being prosecuted if I go back to Korea.
3.The decision made by the Tribunal is biased.
The first two grounds appear to address the merits only of the Tribunal’s decision.
The third ground is not supported by any evidence and has no apparent foundation in the documents before me.
The applicant’s amended application consists essentially of a repetition of his refugee statement which had been previously submitted to the Department and the Tribunal. As such, it does not identify any jurisdictional error.
On all the material before me, I am not satisfied that the application has raised an arguable case for the relief claimed. I consider it is appropriate to dismiss the application under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 20 November 2006
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