SZKNE v Minister for Immigration and Citizenship

[2007] FCA 1651

FEDERAL COURT OF AUSTRALIA

SZKNE v Minister for Immigration and Citizenship [2007] FCA 1651

SZKNE v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1586 OF 2007

MIDDLETON J
29 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1586 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKNE
Appellant

AND:

REFUGEE REVIEW TRIBUNAL
First Respondent

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	29 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1586 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKNE
Appellant

AND:

REFUGEE REVIEW TRIBUNAL
First Respondent

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Second Respondent

JUDGE:	MIDDLETON J
DATE:	29 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 23 July 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 26 February 2007 and handed down on 15 March 2007. 

2. The appellant is a citizen of Indonesia who arrived in Australia on 3 November 2006 as a holder of a visitor’s visa issued on 9 August 2006.  The appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known) on 28 November 2006 and a delegate of the first respondent refused the application on 16 December 2006.  On 16 January 2007 the appellant applied to the Tribunal for a review of that decision.

   THE TRIBUNAL’S DECISION

3. In his application for a protection visa, the appellant claimed to have a well-founded fear of persecution by native Indonesians resulting from his ethnicity as an ethnic Chinese in Indonesia.  He claimed that he was unable to find employment, had to start his own business and that his shop was looted and burned during the riots in 1998.  The appellant claimed to fear that the riots may reoccur at any time and that he had a psychological fear of returning to Indonesia.

4. On 25 January 2007 the Tribunal sent to the appellant’s nominated address for correspondence in the application for review a letter inviting him to attend a hearing scheduled for 26 February 2007. In a separate letter of 25 January 2007, the Tribunal invited the appellant to comment on information that may be the reason or a part of the reason for deciding the appellant may not be entitled to a protection visa. In its decision, the Tribunal noted the appellant failed to reply to both letters. The appellant failed to appear before the Tribunal on the allocated date and consequently the Tribunal proceeded to make a decision under s 426A of the Migration Act 1958 (Cth) (‘the Act’), to make a decision on the review without taking any further action to allow or enable the appellant to appear before it.

5. The Tribunal found the claims of the appellant to be vague, general and lacking in detail.  It found he was not a credible witness because his claim of being unable to find a job was inconsistent with information provided in his application for the visitor’s visa and that appellant did not provide any explanation for this inconsistency.  Consequently, the Tribunal could not accept the appellant’s claim that he suffered persecution in Indonesia due to a Convention reason.

6. The Tribunal could not be satisfied that the appellant held a genuine fear of persecution due to his race or ethnicity as the appellant previously travelled to Australia on a visitor visa and returned to Indonesia after four days in Australia.  He had provided no explanation for his delay in travelling to Australia after receiving his visa.

7. The Tribunal referred to independent country information and accepted that ethnic Chinese may face discrimination in Indonesia, but due to limited information available to the Tribunal and its inability to test the claims of the appellant, the Tribunal was not satisfied that the appellant would face persecution within the meaning of s 91R of the Act because of his ethnicity.

   THE FEDERAL MAGISTRATE’S DECISION

8. On 17 April 2007 the appellant sought judicial review in the Federal Magistrates Court.  Before the Federal Magistrate the appellant raised three grounds: that the Tribunal failed to consider the whole case, that is was not reasonable for the Tribunal to find that sexual harassment was not serious persecution, and that the Tribunal did not adequately consider that the appellant would be put into danger if returned to Indonesia.

9. The Federal Magistrate considered the grounds but was unable to ascertain jurisdictional error. In relation to the first ground, his Honour determined that there were no parts of the case that were not considered by the Tribunal. The second ground was rejected because there was no such finding in relation to sexual harassment. In relation to the third ground his Honour asserted that the Tribunal had insufficient information before it to enable it to be satisfied that he should receive a protection visa. The Federal Magistrate found that, because the appellant failed to attend the hearing, it was open for the Tribunal to proceed as it did in the appellant’s absence and had made the necessary factual findings to enliven its discretion pursuant to s 426A of the Act.

   GROUNDS OF APPEAL

10. The notice of appeal before me raised the same first two grounds as before the Federal Magistrate, and made an additional claim that the Tribunal’s decision was illogical.

11. At the hearing of the appeal before me the appellant made no submissions.

    CONSIDERATION

12. As I have said, the Federal Magistrate found that the Tribunal was entitled to have proceeded pursuant to s 426A and that in the circumstances the Tribunal’s findings were open to it, and concluded that there was no jurisdictional error in the Tribunal’s decision.

13. The notice of appeal does not identify any error by the Federal Magistrate and again refers to a sexual harassment claim that was not put to the Tribunal.  The allegations against the Tribunal that the making of the decision was illogical and that it failed to consider the whole of the appellant’s case are not particularised, and there is no basis on the material before me to support such contentions.

14. In my opinion, the approach and conclusion of the Federal Magistrate were correct, and there was no jurisdictional error. 

15. Accordingly, the appeal should be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:        

Dated:        31 October 2007

Counsel for the Appellant:	Self-represented
Counsel for the First Respondent:	T Reilly
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	29 October 2007
Date of Judgment:	29 October 2007