SZJYL v Minister for Immigration
[2007] FMCA 1535
•21 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1535 |
| MIGRATION – Applicant notified of hearing – failure to appear – no attempt to contact Court – dismissed – application to re-instate – no prospect of application succeeding if re-instated – application does not raise an arguable case – dismissed. |
| Migration Act 1958 (Cth), s.36(2) Federal Magistrates Court Rules 2007 (Cth), rr.13.03A(c), 44.12, 44.13 |
| SZBEW v Minister for Immigration [2005] FMCA 999 NADK of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 184 NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439 |
| Applicant: | SZJYL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 21 June 2007 |
| Date of last submission: | 21 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms B. Anniwell of Australian Government Solicitor |
ORDERS
The application for reinstatement is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3 of 2007
| SZJYL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application for review of the decision of the Tribunal signed on 24 November 2006 was filed on 2 January 2007.
By order of the Court dated 1 February 2007, orders were made by consent of the parties that the matter be set down for hearing on
30 April 2007 in Court 7D, Level 7, John Maddison Tower, 88 Goulburn Street, Sydney, before Federal Magistrate Turner.
Those orders were followed by a note that:
In the event there is no appearance by the applicant at the hearing the proceeding may be dealt with and dismissed in the absence of the applicant.
The applicant appeared at the hearing on 1 February 2007 with the aid of an interpreter. The applicant signed the orders and consented to them being made.
The applicant does not say that he was unaware of the hearing to take place on that day. In fact, the Court infers from the applicant’s submissions today that the applicant was aware of the hearing to take place on that day.
The Court finds that the applicant was aware of the hearing to take place on 30 April 2007.
The matter came on for hearing on 30 April 2007 at the time and place ordered. The applicant failed to appear. In those circumstances the application was dismissed pursuant to Rule 13.03A(c).
The applicant seeks that the matter be reinstated and has filed an affidavit in support, stating that he did not attend at the hearing because he had “some financial problems and sickness too.” The applicant stated that he did not notify the Court.
The first respondent opposes the matter being reinstated. The Court has had regard to two decisions of this Court, the first being SZBEW v Minister for Immigration [2005] FMCA 999. In that case the applicant alleged that he was too sick to attend, and it was found by the Court that he made no effort to contact the Court. No medical opinion was provided to the Court to prove the illness. That application for reinstatement was refused by the Court.
In AZIZ v Minister for Immigration & Anor [2007] FMCA 221, the applicant sought reinstatement claiming that he had been too ill to appear before the Court. No medical evidence was produced to show that he was ill. The applicant did not contact the Court to explain his absence on that day. That application for reinstatement was refused.
The applicant in the present case alleges his illness prevented his attendance. No medical evidence has been presented to the Court.
The applicant also says that financial reasons prevented him from attending the Court as he lives 600 kilometres away from the Court. He said he had no money to pay to come to Court. However, the Court notes from the application filed by the applicant that he provided a mobile phone number through which he could be contacted. The applicant says this mobile phone belongs to a friend of his, but he did not ask the friend if he could that phone to contact the Court. The Court finds that the applicant made no attempt to contact the Court.
Another matter the Court has to consider is the prospect of the application succeeding if it was reinstated. Rule 44.12(1)(a) of the Federal Magistrates Court Rules2001 provides that if the Court is not satisfied that the applicant’s application has raised an arguable case for the relief claimed, it may dismiss the matter. Rule 44.13(1) provides at the hearing for an order to show cause the applicant is confined to the relief sought on the grounds mentioned in the application.
Those grounds are:
(1)That the applicant's case was not considered by the respondents, as such, there is a legal and jurisdictional error in the matter.
(2)That the amount of persecution was not given any importance, the fear of life of the applicant, as the applicant's life was in great danger of being killed.
The Tribunal sent the applicant a letter on 24 October 2006. That letter is contained in the Court Book (“CB”) at page 51. The letter advised him 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.
The Tribunal invited the applicant to attend the hearing on 24 November 2006 –
to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
The Tribunal stated at CB 60:
The Applicant did not respond to the opportunity provided by the Tribunal. He did not appear at the scheduled time of the hearing. He has not indicated any interest in attending a hearing, and has not provided any explanation for any inability to take up the opportunity to give oral evidence in this matter. The Tribunal has duly informed the applicant of the implications of not attending the hearing offered to him. The Tribunal will now proceed to a decision on the material before it.
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328 per Downes J at [5].
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ (ante) at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
The findings and reasons of the Tribunal are as follows (CB 62-3) (highlighting added):
The Tribunal is prepared to accept on the applicant’s word that he is a national of Pakistan. The Tribunal is helped in this conclusion by the Applicant’s identification; in his RRT application, of Pakistan as his country of nationality and his identification of Urdu, the national language of Pakistan, as his own language.
Although the Tribunal was not able to form a view about this in response to the appearance by the Applicant at a hearing, the Tribunal accepts, for want of evidence to the contrary, that the Applicant remains outside of Pakistan. The Tribunal is prepared to accept that the Applicant remains in Australia’s migration zone.
The Tribunal accepts on the basis of the Applicant having lodged a protection visa application, and also an application for RRT review of the latter, that the Applicant is unwilling to return to Pakistan.
The Tribunal is prepared to accept the applicant’s claim about the minority status of Pakistan’s Wahabi population.
However, the rest of the Applicant’s substantive claims, including his claim about being a Wahabi himself, are unsupported and untested assertions. The information the Applicant has provided in this case is not sufficiently detailed for the Tribunal to be satisfied that he is a Wahabi, as distinct from being a Muslim who does follow the “saints” whom the Wahabi do not recognise.
The information the Applicant has provided in this case is not sufficiently detailed for the Tribunal to be satisfied that he has faced serious harm from any source for reasons of being a Wahabi of even a perceived Wahabi.
The information the Applicant has provided in this case is not sufficiently detailed for the Tribunal to be satisfied that he faces a real chance of persecution, for reasons of being a Wahabi, in the reasonably foreseeable future.
For these reasons, the Tribunal is not satisfied that the Applicant has a well-founded fear of being persecuted in Pakistan for reasons related to the Convention.
The Applicant’s evident silence in the matter of this review of his claims is not helpful to his case overall.
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The reason for the Tribunal deciding to affirm the decision under review was the failure of the applicant to establish his case. “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70.
The Court accepts the submissions for the first respondent, that
The reason that the applicant failed before the…RRT was that he failed to provide sufficient information about his claims for [it] to be satisfied... The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.
The Court accepts also the submission for the first respondent that:
The Tribunal has complied with ss.425 and 425A of the Migration Act 1958 (“the Act”) in inviting an applicant to attend a hearing, it was therefore entitled to proceed under s.426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 184, NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121, VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134, NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162, Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73, Minister for Immigration and Multicultural and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73, SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142.
Ground one of the application alleges that the applicant’s case was not considered. Clearly that is not correct. That claim is not arguable.
Ground two alleges that “the amount of persecution” and the “fear of life of the applicant” was not given any importance. The Tribunal considered that claim but rejected the claim that he faced serious harm because the information provided by the applicant was not sufficiently detailed to establish that he faced serious harm or a well founded fear of persecution. That claim is not arguable.
The application for reinstatement is dismissed as the hearing of that application would be futile.
The Court finds that the application does not raise an arguable case for the relief claimed.
The application is dismissed pursuant to Rule 44.12(1)(a).
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 10 September 2007
15
2