SZJQW v Minister for Immigration and Citizenship

Case [2007] FCA 805

FEDERAL COURT OF AUSTRALIA

SZJQW v Minister for Immigration and Citizenship [2007] FCA 805

SZJQW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD539 OF 2007

COLLIER J
24 MAY 2007
BRISBANE (HEARD IN SYDNEY)


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

NSD539 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJQW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

24 MAY 2007

WHERE MADE:

BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

NSD539 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJQW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

COLLIER J

DATE:

24 MAY 2007

PLACE:

BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

  1. This is an appeal against the decision of Emmett FM delivered 12 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

    Background

  2. The appellant is a citizen of Indonesia who arrived in Australia on 12 February 2006. On 22 March 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 13 June 2006. On 14 July 2006 the appellant applied to the Tribunal for a review of that decision.

  3. In his application for a protection visa the appellant claimed to have well-founded fear of persecution. The appellant claimed that he grew up a Muslim and was persecuted by Indonesian authorities who he claimed were Christian and Catholic. The appellant claimed that in Jakarta, riots between Muslims and Christians are frequent with churches being burnt down and damaged. The appellant claimed that he was arrested by local police who threatened him and kicked him. The appellant claimed that he decided to come to Australia with his wife to seek protection.

    The Tribunal’s decision

  4. On 31 July 2006 the Tribunal wrote to the appellant advising that it had considered the material before it but was unable to make a decision in his favour on this information alone and inviting him to attend a hearing to be held on 12 September 2006. The appellant advised the Tribunal that he wished to attend the hearing in a Response to Hearing Invitation form dated 15 August 2006. The appellant failed to appear on the allocated time and date.

  5. Tribunal proceeded to make a decision without taking any further action to enable the appellant to appear before it pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”). On the evidence before it the Tribunal was not satisfied that the appellant had suffered persecution in the past or that he had well-founded fear of persecution within the meaning of the Convention if he were to return to Indonesia in the reasonably foreseeable future.

    Decision of the Federal Magistrate

  6. On 13 November 2006 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The first ground of the appellant’s amended application filed 14 February 2007 claimed the Tribunal did not consider the situation in Indonesia was dangerous for the appellant. The other grounds reasserted the factual claims.

  7. The Federal Magistrate asserted that paragraphs two to four of the amended application did not disclose any error capable of review and rejected them. Her Honour found that the first paragraph contained no particulars and the appellant did not make any meaningful submission in support of the allegation. Her Honour found that it was clear from a fair reading of the decision of the Tribunal that the reason for the failure by the Tribunal to be satisfied about the claims was the lack of detail provided. Her Honour noted that it was for the appellant to satisfy the decision maker that the appellant met the criteria required. The conclusions of the Tribunal were open to it on the material before it and for the reasons that it gave. The Tribunal complied with its statutory obligations in the conduct of its review and the making of its decision. As there was no jurisdictional error, her Honour dismissed the application.

    On appeal

  8. The notice of appeal filed on 2 April 2007 asserted the following:

    1.        I fear persecution for reason of my religion.

    2.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

    3.I believe that I would face a risk of being put into danger if I return to China.

  9. The appellant did not appear at the hearing. I asked the Court officer to call the name of the appellant outside the Courtroom however there was no response by the appellant. I then adjourned the Court while my associate, with the assistance of the Court interpreter, attempted to contact the appellant by the only telephone number available, however without success.

  10. On the Court file I note a copy of a letter from the Federal Court of Australia, Sydney Registry advising the appellant of the time and place of today’s hearing.

  11. Further Mr Markus for the first respondent provided copies of two letters from Ms Sharon Hanstein, Senior Lawyer, Australian Government Solicitor to the appellant, dated 2 May 2007 and 21 May 2007 respectively, informing the appellant that the matter had been listed for hearing at 2.15 pm on 24 May 2007. Although there is no affidavit before me as to the contents of these letters, I am prepared to accept that the solicitors for the first respondent have also communicated the date and time of hearing of this appeal to the appellant.

  12. In light of the paucity of material before me in relation to this appeal, it is possible to decide the appeal on the merits of the case.

  13. In my view the grounds of appeal filed by the appellant do not raise any appealable error in the decision of Emmett FM. They are not particularised, and no written submissions have been filed by the appellant in support thereof. In particular, the third ground of appeal before me, namely that the appellant believes that he would face a risk of being put into danger if he were to return to China, is particularly meaningless given that the appellant is from Indonesia. In my view the appeal should be dismissed.

    THE COURT ORDERS THAT:

    1.The appeal be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        24 May 2007

Counsel for the Appellant: The appellant did not appear
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 24 May 2007
Date of Judgment: 24 May 2007
Details
AGLC
SZJQW v Minister for Immigration and Citizenship [2007] FCA 805
Case
[2007] FCA 805
Decision Date

CaseChat Overview and Summary

In the case of SZJQW v Minister for Immigration and Citizenship, the appellant, a citizen of Indonesia, sought a review of a decision made by the Refugee Review Tribunal to refuse a protection visa. The Tribunal upheld the initial decision by a delegate of the Minister for Immigration and Citizenship, determining that the appellant had not provided sufficient evidence to substantiate his claims of past persecution or a well-founded fear of future persecution based on his religious beliefs. The appellant subsequently sought judicial review of the Tribunal's decision in the Federal Magistrates Court, which was dismissed. The appellant then appealed this decision.

The legal issues before the court involved whether the Tribunal had correctly exercised its discretion in not requiring the appellant to appear before it and whether there was a jurisdictional error in the Tribunal's decision-making process. The court had to determine whether the Tribunal appropriately considered the appellant's claims and whether the decision was supported by the evidence presented. The appellant argued that the Tribunal failed to adequately consider the risk he would face if returned to Indonesia due to his religious beliefs.

The court found that the Tribunal did not err in proceeding to make a decision without requiring the appellant's appearance, as the appellant had failed to attend the scheduled hearing and no further action was mandated by statute. The court held that the Tribunal's decision was based on a fair assessment of the evidence provided and that the appellant had not demonstrated sufficient detail to support his claims of persecution. The court concluded that the Tribunal's decision was within its statutory authority and did not involve any jurisdictional error. Therefore, the appeal was dismissed.

As a result of the court's decision, the appeal was dismissed, and the original decision of the Refugee Review Tribunal to refuse the protection visa remained in place. The appellant was not granted a protection visa.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

This is an appeal against the decision of Emmett FM delivered 12 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.Background The appellant is a citizen of Indonesia who arrived in Australia on 12 February 2006. On 22 March 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 13 June 2006. On 14 July 2006 the appellant applied to the Tribunal for a review of that decision. In his application for a protection visa the appellant claimed to have well-founded fear of persecution. The appellant claimed that he grew up a Muslim and was persecuted by Indonesian authorities who he claimed were Christian and Catholic. The appellant claimed that in Jakarta, riots between Muslims and Christians are frequent with churches being burnt down and damaged. The appellant claimed that he was arrested by local police who threatened him and kicked him. The appellant claimed that he decided to come to Australia with his wife to seek protection.The Tribunal’s decision On 31 July 2006 the Tribunal wrote to the appellant advising that it had considered the material before it but was unable to make a decision in his favour on this information alone and inviting him to attend a hearing to be held on 12 September 2006. The appellant advised the Tribunal that he wished to attend the hearing in a Response to Hearing Invitation form dated 15 August 2006. The appellant failed to appear on the allocated time and date. Tribunal proceeded to make a decision without taking any further action to enable the appellant to appear before it pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”). On the evidence before it the Tribunal was not satisfied that the appellant had suffered persecution in the past or that he had well-founded fear of persecution within the meaning of the Convention if he were to return to Indonesia in the reasonably foreseeable future.Decision of the Federal Magistrate On 13 November 2006 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The first ground of the appellant’s amended application filed 14 February 2007 claimed the Tribunal did not consider the situation in Indonesia was dangerous for the appellant. The other grounds reasserted the factual claims. The Federal Magistrate asserted that paragraphs two to four of the amended application did not disclose any error capable of review and rejected them. Her Honour found that the first paragraph contained no particulars and the appellant did not make any meaningful submission in support of the allegation. Her Honour found that it was clear from a fair reading of the decision of the Tribunal that the reason for the failure by the Tribunal to be satisfied about the claims was the lack of detail provided. Her Honour noted that it was for the appellant to satisfy the decision maker that the appellant met the criteria required. The conclusions of the Tribunal were open to it on the material before it and for the reasons that it gave. The Tribunal complied with its statutory obligations in the conduct of its review and the making of its decision. As there was no jurisdictional error, her Honour dismissed the application.On appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

COLLIER J
Tribunal proceeded to make a decision without taking any further action to enable the appellant to appear before it pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”). On the evidence before it the Tribunal was not satisfied that the appellant had suffered persecution in the past or that he had well-founded fear of persecution within the meaning of the Convention if he were to return to Indonesia in the reasonably foreseeable future.Decision of the Federal Magistrate On 13 November 2006 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The first ground of the appellant’s amended application filed 14 February 2007 claimed the Tribunal did not consider the situation in Indonesia was dangerous for the appellant. The other grounds reasserted the factual claims. The Federal Magistrate asserted that paragraphs two to four of the amended application did not disclose any error capable of review and rejected them. Her Honour found that the first paragraph contained no particulars and the appellant did not make any meaningful submission in support of the allegation. Her Honour found that it was clear from a fair reading of the decision of the Tribunal that the reason for the failure by the Tribunal to be satisfied about the claims was the lack of detail provided. Her Honour noted that it was for the appellant to satisfy the decision maker that the appellant met the criteria required. The conclusions of the Tribunal were open to it on the material before it and for the reasons that it gave. The Tribunal complied with its statutory obligations in the conduct of its review and the making of its decision. As there was no jurisdictional error, her Honour dismissed the application.On appeal The notice of appeal filed on 2 April 2007 asserted the following:1. I fear persecution for reason of my religion.2.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.3.I believe that I would face a risk of being put into danger if I return to China. The appellant did not appear at the hearing. I asked the Court officer to call the name of the appellant outside the Courtroom however there was no response by the appellant. I then adjourned the Court while my associate, with the assistance of the Court interpreter, attempted to contact the appellant by the only telephone number available, however without success. On the Court file I note a copy of a letter from the Federal Court of Australia, Sydney Registry advising the appellant of the time and place of today’s hearing. Further Mr Markus for the first respondent provided copies of two letters from Ms Sharon Hanstein, Senior Lawyer, Australian Government Solicitor to the appellant, dated 2 May 2007 and 21 May 2007 respectively, informing the appellant that the matter had been listed for hearing at 2.15 pm on 24 May 2007. Although there is no affidavit before me as to the contents of these letters, I am prepared to accept that the solicitors for the first respondent have also communicated the date and time of hearing of this appeal to the appellant.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

Full text does not contain this section.