SZKAB v Minister for Immigration
[2007] FMCA 661
•4 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKAB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 661 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| Applicant: | SZKAB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG63 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 4 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2007 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Ms H Blackman Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG63 of 2007
| SZKAB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 12 December 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Malaysia and had made claims of persecution there. His protection visa claims appear to have been based upon his Chinese ethnicity. The applicant failed to attend a hearing before the Tribunal to which he was invited. The Tribunal found that it was entitled to proceed in the applicant’s absence pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal also found that because of the insufficient detail provided by the applicant in support of his claims the Tribunal was not satisfied that he qualified for a protection visa.
These proceedings began with a show cause application filed on 8 January 2007. In that application, the applicant asserted actual notification of the Tribunal decision on 15 December 2006. On that basis I find that the application was filed within time.
There are two grounds in the application. The first asserts that the applicant did not receive any hearing invitation from the Tribunal. The second asserts that the Tribunal found that there was no real chance that the applicant would suffer persecution because of his Chinese ethnicity in Malaysia. The application is supported by a short affidavit filed with it. That affidavit annexes a copy of the Tribunal decision and asserts that the applicant does fear persecution in Malaysia based upon his ethnicity. The applicant believes that his application to the Tribunal was not assessed properly and that he was not offered an opportunity to appear before the Tribunal and present oral evidence. I received that affidavit as evidence of the applicant’s understanding and belief. I also have before me as evidence a book of relevant documents filed on 3 April 2007 and the affidavit of Ishan Fuad Muthalib filed on 16 April 2007.
This matter first came before me on 7 February 2007. At that time I gave directions for the filing of additional material and listed the matter for a show cause hearing on 23 April 2007. The applicant did not take up the opportunity I gave him to amend his application or to file additional material in support of it. He appeared in person with the assistance of a Mandarin interpreter on 23 April 2007. At that time he complained that he had not been served with the court book and Mr Muthalib’s affidavit. It appeared that there was substance to that complaint. The applicant was served by hand on that day and I adjourned the show cause hearing until today.
The applicant did not appear today for the adjourned hearing. The Court was, however, successful in contacting him by telephone at his work place. The applicant explained his failure to attend on the basis that his migration agent had only told him today that he needed to attend. There is no indication on the court file of any involvement by a migration agent, but I concede that an agent may be involved. I pointed out to the applicant, however, that I had told him on 23 April that he needed to come back to court today and he should not have required the confirmation of a migration agent. I declined to delay the hearing any further, but invited the applicant to attend by telephone. He accepted that invitation. I discussed the issues arising from the show cause application with the applicant. He did not wish to make any submissions other than to repeat his assertion that he had not received a hearing invitation from the Tribunal. He offered the explanation that he had changed his address.
There is no substance in either of the grounds of review in the application. The court book at pages 54 and 55 discloses that the applicant was invited to a Tribunal hearing to be held on 30 October 2006. The letter was dated 25 September 2006 and was addressed to the applicant at his nominated address for service in his review application. The applicant now claims that he had changed his address, but there is no evidence that he advised the Tribunal of any change. The Tribunal decision records on pages 62 and 63 of the court book the circumstances of the sending of the hearing invitation and the consequences. There was no response to the hearing invitation and the invitation was not returned. The applicant had not nominated anyone else to receive communications on his behalf and for practical purposes there was no other means for the Tribunal to contact the applicant. In those circumstances it was open to the Tribunal to find, as it did, that it was entitled to proceed in the applicant’s absence pursuant to s.426A of the Migration Act. In that regard I accept the affidavit of Mr Muthalib as establishing that the hearing invitation was sent in accordance with the requirements of the Migration Act and Regulations. In particular, a printout from the Tribunal database annexed to that affidavit establishes that the hearing invitation was despatched on the same date as it bore. In the circumstances, the applicant was, under the Act, deemed to have received the hearing invitation even if it was not in fact received.
The second ground of review misrepresents what the Tribunal found. The Tribunal did not find that the applicant would not be persecuted in Malaysia by reason of his Chinese ethnicity. Rather, the Tribunal found, based on the very limited material before it, that it was not satisfied that his claims for a grant of a protection visa had been made out. That finding was open to the Tribunal on the material before it.
No other arguable ground of jurisdictional error is apparent to me from the material. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant did not wish to be heard on costs. I see no reason to depart from the court scale in this matter. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2500in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 May 2007
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