SZJJO v Minister for Immigration

[2006] FMCA 1798

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1798

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss 65(1), 422B, 426A

SJSB v Minister for Immigration [2004] FCAFC 225
Minister for Immigration v VSAF of 2003 [2005] FCAFC 73

Applicant: SZJJO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2643 of 2006

Judgment of: Raphael FM

Hearing date: 4 December 2006

Delivered at: Sydney

Delivered on: 4 December 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Wright
Sparke Helmore

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, including any reserved costs, in the sum of $1,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2643 of 2006

SZJJO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to show cause in relation to an application filed in this court on 19 September 2006 seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on

   
   

   2 August 2006.

2. The applicant is a citizen of India.  He claimed in his protection visa application to fear the Congress Party who he believed were responsible for the deaths of his father and brother who he says were supporters of the Lokdal Party.  The applicant had problems with the local Congress Party MLA in his home town and moved to Delhi but he claims that the Congress Party identified his whereabouts and made problems for him so he returned to his village for six months before moving to Utah Pradesh.  He claims the Congress Party caused problems for him there.  He believes if he returns to India he will be killed.

3. On 4 July 2006 the Tribunal wrote to the applicant at the address given by him in his application for review, [CB 36], inviting him to a hearing on 2 August 2006.  There is no evidence in the green book that the invitation was returned. The applicant says he did not receive it and did not appear.  The Tribunal was not satisfied from the evidence that it had before it that the applicant was a person to whom Australia owed protection obligations.  At [CB 54] it says:

   The claims before the Tribunal regarding (sic) are lacking in essential detail.  While he refers to threats to kill him, there is no information in relation to when or how these threats were made nor other essential details.  He provides no dates of serious events which he claims to have occurred, such as the deaths of family members.    The applicant was invited to appear before the Tribunal but he did not do so, leaving his claims unclarified and questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution within the meaning of the Convention if he returns to India in the foreseeable future.

4. It is clear from decisions such as SJSB v Minister for Immigration [2004] FCAFC 225, Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 that s.65(1) of the Migration Act 1958 (Cth) (the “Act”) requires a decision-maker to decline to grant a visa unless he or she is affirmatively satisfied that the criteria for the visa has been satisfied. The expression by the Tribunal in this case of its lack of satisfaction in circumstances where the applicant did not appear does not seem to me to be redolent of jurisdictional error.

5. In his grounds of application the applicant says he was denied procedural fairness because the Tribunal did not follow Professor Hathaway’s admonition that the claims of an applicant should not be impugned merely because of vagueness or inconsistencies in recounting peripheral details. In the ordinary circumstance the Tribunal would have had the opportunity of requesting the applicant to fill in any of those peripheral details and would thus have complied with Professor Hathaway’s admonition but in this case it was unable to do so because of the failure of the applicant to attend. I cannot see that there has been any lack of procedural fairness in the approach taken by the Tribunal even if this case was not one that was subject to the prescriptions of s.422B of the Act.

6. At the hearing before me today the applicant said that he had not received the notice from the Tribunal. I have not called him to give evidence because it is clear to me from the face of the documents that the letter was correctly sent to the last known address which incidentally is the same address that the applicant has put upon his application to this court. Presumably he received the Tribunal’s decision at that address as well. The Tribunal acted in accordance with the rules dealing with non-attendance and proceeded under s.426A of the Act to come to a decision in the absence of the applicant. There was no jurisdictional error in the manner in which it proceeded.

7. The substantive application is dismissed.  The applicant must pay the respondent’s costs which I assess in the sum of $1,750.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 December 2006