SZKJC v Minister for Immigration
[2007] FMCA 916
•5 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 916 |
| MIGRATION – RRT decision – Indian fearing persecution for political activity – no appearance at Tribunal hearing – no arguable case – application dismissed at show cause hearing. |
| Migration Act 1958 (Cth), ss.426A(1), 476 Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) |
| First Applicant: | SZKJC |
| Second Applicant: | SZKJD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 884 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 5 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms S Kantaria |
| Solicitors for the Respondents: | Clayton Utz |
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 applicants must pay the first respondent’s costs in the sum of $2,000
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 884 of 2007
| SZKJC |
First Applicant
| SZKJD |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 15 March 2007, in which the applicants seek 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 respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 February 2007 and handed down on 1 March 2007. The Tribunal affirmed a decision of a delegate made on 23 November 2006 refusing to grant protection visas to the applicants. They are a husband and wife, but only the husband made refugee claims, and I shall refer to him as “the applicant”.
The application was returnable at a first Court date before me on
10 April 2007. The applicant attended and had the assistance of a Hindi interpreter. The nature of the proceeding was explained to him, and he was given an opportunity to file an amended application and evidence after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that the application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
A referral for free advice from a barrister was sent to the applicant by the Federal Court Registry on 12 April 2007. A bundle of relevant documents was posted to him at around the time that the Court Book was filed in the Court on 26 April 2007. Regrettably, it seems that the panel adviser did not receive his copy of the green book until recent days, but he attended Court today, gave the applicant advice, and was then excused.
The applicant did file an amended application, on 22 May 2007, which I shall consider below. He sought an adjournment today to obtain further advice. However, in my opinion, he has been given sufficient time to obtain advice from whatever sources he wishes to get it, and has now received advice from the legal panel adviser. In the circumstances of the case, which I shall set out below, I can see no purpose in further adjourning the application. I consider that the applicant has had a reasonable opportunity to show to the Court any argument he might have.
The applicant arrived in Australia in August 2006, and lodged an application for a protection visa on 8 September 2006. His application form did not reveal any assistance being given. A typed statement set out why he claimed protection in Australia against return to India.
He said that he was a Hindu from Gujarat State who had been living at Ahmedabad where he was “the active member” of the BJP party “handling all activities of my area”. The applicant suggested that during an election he received threats and abuse from the members of the Congress Party in his area, but he ignored that. The BJP won “maximum seats in Gujarat”. He claimed that subsequently he was attacked on one occasion at night, and “after six months of that incident” he and his wife were attacked again, but the assailants were not identified “so it was difficult for police to search those people”. He said that he came to Australia after relatives and friends advised him to leave India.
No details of this history and no corroboration was provided to the Department, nor subsequently to the Tribunal. A delegate in a statement of reasons had “serious doubts concerning the overall credibility of the applicant's claims”.
When the applicant appealed to the Tribunal, he did not identify an adviser acting on his behalf, and requested the Tribunal to send all correspondence to an address at Jerilderie.
The Tribunal sent to that address a letter dated 28 December 2006 informing 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 applicant was invited to attend a hearing by the Tribunal on 1 February 2007. He returned a “Response to Hearing Invitation” form indicating that he intended to come. However, there was no attendance, and no contact was made to the Tribunal to explain his absence. The Tribunal proceeded to decide the case pursuant to s.426A(1) of the Migration Act.
Its reasons for affirming the delegate's decision were straightforward. It said:
On the limited information before it, the Tribunal cannot be satisfied that the applicant has a well-founded fear because of the applicant's political opinion, religion or for any other Convention ground.
The Tribunal referred to the vague and incomplete assertions made in support of the claim for refugee status, and said that the material was insufficient to determine the details and veracity of the claims.
I have considered the reasons and procedures of the Tribunal, and can see no arguable jurisdictional error affecting its decision.
In his affidavit in support of the application to the Court, the applicant said in relation to his absence from the Tribunal's hearing only: “I was unable to attend RRT because of my sickness”. The applicant said this to me again today, but he conceded that he made no contact with the Tribunal. He said that he had no medical evidence to explain or prove his incapacity, because he did not seek medical assistance at the time. I can see no arguable ground to challenge the Tribunal's decision based on those asserted facts. The Tribunal was clearly entitled to proceed under s.426A(1).
His application and amended application filed in the Court have adopted precedents from other people's cases, and have no meaningful application to the present case. Allegations of error of law, failure of natural justice, misapplication of s.91R and failure to follow procedures under 424A(1) have no arguable substance, in my opinion.
For the above reasons, I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application today under r.44.12(1)(a).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 18 June 2007
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