SZKNE v Minister for Immigration

[2007] FMCA 1189

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1189

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant failed to attend tribunal hearing – observations on the correct approach taken by the tribunal to its exercise of discretion under s.426A of the Migration Act 1958 (Cth) – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss 91R, 425, 425A, 426A, 441A
Federal Magistrates Court Rules 2001 (Cth)

SZKBO v Minister for Immigration [2007] FMCA 1019

Applicant: SZKNE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1236 of 2007

Judgment of: Driver FM

Hearing date: 23 July 2007

Delivered at: Sydney

Delivered on: 23 July 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F Minzlaff
Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1236 of 2007

SZKNE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 26 February 2007 and was handed down on 15 March 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. Background facts relating to the applicant's arrival in Australia, his protection visa claims, his review application, and the Tribunal decision on it are set out in the Minister's written submissions, filed on 17 July 2007.  Those were read to the applicant by an Indonesian interpreter prior to me coming onto the bench this morning.  I adopt as background, for the purposes of this judgment, paragraphs 2 through to 8 of those written submissions. 

   The applicant is a citizen of Indonesia who arrived in Australia on 3 November 2006 and lodged an application for a protection visa on 28 November 2006 (see CB1-31).  He claimed to fear persecution in Indonesia because of his Chinese ethnicity (see CB29-31).  On 16 December 2006, a delegate of the first respondent refused to grant the applicant a visa (see CB34-48) and on 16 January 2007 the applicant applied to the Tribunal for review of that decision (see CB49-52).  The applicant's statement attached to his protection visa application was also attached to his application for review in substantially the same form.

   By letter dated 25 January 2007 addressed to the applicant at the address for service given in his application (see CB51 and 55) the Tribunal invited the applicant to attend a hearing to be held on 26 February 2007.  In a separate letter, also dated 25 January 2007, the Tribunal invited the applicant to comment upon certain information that would, subject to any comment by the applicant, be the reason or part of the reason for the Tribunal deciding he was not entitled to a visa (see CB57-58).  No reply was received by the Tribunal to either letter. The applicant did not attend the scheduled hearing and the Tribunal proceeded to make a decision on the review without taking any further steps to allow or enable him to appear before it. 

   The Tribunal handed down its decision on 15 March 2007 affirming the decision under review.

   Tribunal’s decision

   The Tribunal found the applicant's claims to be vague, general and lacking in detail (see CB71.6). 

   The Tribunal considered the applicant's claims were inconsistent as between his written statement attached to his application to the Tribunal and details contained in his visitor visa application (see CB71.7).  Due to this inconsistency, and the applicant's failure to comment upon it, the Tribunal made adverse credibility findings about the applicant and did not accept his claims of having suffered persecution for a Convention reason.

   The applicant failed to comment upon why he previously travelled to Australia but returned to Indonesia and why he delayed his travel to Australia for 4 months after obtaining an Australian visa (see CB71.8).  Without an explanation of these matters the Tribunal was unable to be satisfied the applicant had a genuine fear of persecution in Indonesia due to his race or ethnicity.

   The Tribunal acknowledged country information that showed Chinese Indonesians may face discrimination but concluded it could not be satisfied that the applicant would be so persecuted due to the paucity of information about his claims (see CB71.9 – 72).

3. These proceedings began with a show cause application, filed on 17 April 2007.  The applicant asserts actual notification of the Tribunal decision on 26 March 2007.  On that basis I find that the application was filed within time.  The application is supported by a short affidavit, filed on the same day, and annexes a copy of a decision of the Tribunal. 

4. Paragraph 1 states that the applicant would be put in danger if he returned to China.  With his agreement, when this matter first came before me on 28 May 2007, I amended the reference to China to Indonesia.  I received paragraph 1 of the affidavit as a submission.  I received as evidence a book of relevant documents, filed on 15 June 2007. 

5. I invited the applicant to make oral submissions in support of his application this morning.  He declined that opportunity.  There are three grounds in the application.  The first is that the Tribunal failed to consider the whole of the applicant's case.  There are no particulars of any part of the applicant's case that the Tribunal did not consider.  I asked the applicant to identify any part of his case that was overlooked but he was unable to do so. 

6. The second ground is that it was not reasonable for the Tribunal to make a finding that sexual harassment for the applicant was not serious persecution.  The Tribunal decision is silent on that issue.  There was no such finding. 

7. The third ground is that the Tribunal did not adequately consider that the applicant would be put into danger if he went back to Indonesia.  The applicant failed before the Tribunal, because the Tribunal had insufficient information before it to enable it to be satisfied that the applicant should receive a protection visa.  The applicant had been invited to attend a hearing before the Tribunal but he failed to attend. 

8. Relevantly, at page 71 of the book of relevant documents the presiding member said:

   The Tribunal is satisfied that the letter sent to the applicant on 25 January 2007 was issued pursuant to s 425 of the Act.  The Tribunal is satisfied that the applicant did not appear before the Tribunal on the day on which, or at the time and place at which the applicant was scheduled to appear. 

   The Tribunal has satisfied itself that the letter of 25 January 2007 complied with s 425A of the Act and was dispatched by prepaid post or other prepaid means within 3 working days of the date of the document to the last address for service provided to the Tribunal by the applicant in connection with the review, in compliance with s 441A(4) of the Act.

   The Tribunal determines, pursuant to s 426A, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.  

   As the applicant did not attend the hearing the Tribunal was denied an opportunity to test his claims. 

9. The Tribunal then went on to consider those claims and found that on the very limited information available to it the Tribunal was not satisfied that the applicant would face persecution within the meaning of s.91R of the Migration Act 1958 (Cth) (“the Migration Act”) because of his Chinese ethnicity.

10. It was open to the Tribunal to proceed as it did in the absence of the applicant. The Tribunal ensured and expressly stated that its discretion to proceed in the applicant's absence, pursuant to s.426A of the Migration Act was enlivened. The Tribunal made the necessary factual findings to enliven its discretion. There is no reason for the Court to look behind those factual findings. The correct approach by the Tribunal taken in this case stands in contrast to the absence of necessary findings I identified in SZKBO v  Minister for Immigration [2007] FMCA 1019.   

11. It was open to the Tribunal to conclude on the limited material before it that it was not satisfied that the applicant had established a well founded fear of persecution in Indonesia by reason of his ethnicity.  The Tribunal reasonably and properly took into account available country information. 

12. The applicant has failed to demonstrate any jurisdictional error in the decision of the Tribunal.  Neither is any jurisdictional error apparent to me from my own reading of the material.  I find that the Tribunal decision is a privative clause decision.  Accordingly, the application must be dismissed and I so order. 

13. Costs should follow the event in this matter.  Scale costs under the Federal Magistrates Court Rules 2001 (Cth) would be $5000. The Minister properly seeks a lesser amount of $3500. The applicant was concerned to clarify his liability to pay but did not otherwise wish to be heard on costs. I accept costs of not less than $3500 had been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in that amount.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate: 

Date:  25 July 2007