SZKRS v Minister for Immigration

[2007] FMCA 1869

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKRS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1869

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refused – merits review not available in judicial review proceedings – no arguable case.

Migration Act 1958, ss.425A, 426A, 441A, 441C
Migration Regulations 1994, reg.4.35D
Federal Magistrates Court Rules 2001, r.44.12

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1948) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552

Applicant: SZKRS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1671 of 2007

Judgment of: Cameron FM

Hearing date: 2 November 2007

Date of last submission: 2 November 2007

Delivered at: Sydney

Delivered on: 2 November 2007

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Pursuant to r.44.12 of the Rules of the Court, the application be dismissed.

2. The applicant pay the first respondent's costs fixed in the amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1671 of 2007

SZKRS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Indonesia who alleges that while in Indonesia he was offered a job which he refused. He alleges that he was subsequently fearful of the persons whom he rejected who he referred to as "terrorists". The applicant's claimed fear of these "terrorists" led him to leave Indonesia and travel to Australia.

2. After his arrival in Australia the applicant lodged an application for a protection visa. This was refused by the Minister's delegate on 10 January 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal's decision.

3. The matter is before the Court today on the applicant's application that the respondent show cause why relief should not be granted to him. Important in considering whether an application to show cause would be successful is the fact that in these judicial review proceedings the Court cannot rehear the applicant's application for a protection visa. Its task is to determine whether the Tribunal's decision is affected by jurisdictional error and in this case whether there is an arguable case that the Tribunal's decision is affected by jurisdictional error.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant's claim for a protection visa are set out on page 4 of the Tribunal's decision (Court Book (“CB”) page 81). Relevantly, those facts are, in summary:

   a)the applicant is an Indonesian Christian and completed 12 years of education and subsequently studied at university;

   b)at the end of September 2006 the applicant was approached by a group seeking to hire him as a builder. He refused the work and the persons seeking to hire him, whom he referred to as "terrorists", became angry. He claimed he was fearful that they might kill him so he fled to Australia. He stated that the "terrorists" will seek to kill him in the future because they consider him an "enemy"; and

   c)the applicant claimed that the Indonesian authorities cannot protect him from the harm he anticipates because they do not have the "full power to protect their people".

2. On 26 February 2007 the Tribunal wrote to the applicant inviting him to appear before it at a hearing because, having considered the material before it, it was unable to make a favourable decision on the application for review based on that information alone. The applicant responded to that invitation by his "Response to Hearing Invitation" dated 14 March 2007 reproduced at CB 70. In that response the applicant said that he would attend the hearing, but the Tribunal's decision record shows that in fact he failed to attend.

3. The applicant having failed to attend, the Tribunal proceeded to determine his application for review pursuant to s.426A of the Migration Act 1958 (“Act”).

Tribunal’s findings and reasons

1. After discussing the claims made by the applicant and the evidence before it the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967.

2. The Tribunal's decision was based on the following findings and reasons:

   a)the applicant presented his claims poorly with only a few details to the department and none to the Tribunal. He did not provide sufficient details regarding his circumstances in Indonesia, or the alleged difficulties he suffered with the “terrorists” there, on which the Tribunal could be satisfied that the applicant was targeted by terrorists in Indonesia or indeed that anyone there wished to harm him;

   b)the Tribunal could not determine from the information before it whether the applicant was a person of interest and concern to terrorists in Indonesia, whether in the past or in the future;

   c)the Tribunal could not be satisfied that in the reasonably foreseeable future the applicant would be at risk of harm by terrorists in Indonesia or that he would suffer circumstances amounting to persecution in Indonesia; and

   d)many questions regarding his previous and future circumstances remained unanswered.

3. In the absence of further information and in light of its findings already set out in these reasons, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Indonesia for reasons of political opinion or any other Convention reason.

Proceedings in this Court

1. In his application to this Court the applicant raises grounds which are pleaded in the following terms:

   1     I face a risk of being killed if I return to Indonesia. 

   2     The Tribunal failed to consider the whole of my claims. 

   3. The Tribunal failed to assess the possibility of danger I will face if I return to Indonesia. 

2. At the hearing today the applicant raised a further issue which might be characterised as an asserted ground of review, namely that the Tribunal reached its decision too quickly.

3. Dealing with each of these grounds in turn:

Risk of being killed in Indonesia

1. The first asserted ground of review invites the Court to undertake a fact-finding exercise which relates to the merits of the applicant's claim to fear persecution. Fact-finding and merits determinations are matters for the Tribunal to deal with and are not open to this Court to engage in, in proceedings for judicial review such as these. The Court is concerned with the legality of the Tribunal's processes and the way it expressed its reasons, not with the fairness of the outcome which the Tribunal reached. The Tribunal and the Court have quite different roles and the first asserted ground of review invites the Court to do what it cannot do.

Tribunal failed to consider the whole of my claims

1. The Tribunal's decision record reveals that the second asserted ground of review cannot be made out. The applicant's claims, such as they were, were considered by the Tribunal and if he had additional claims which he wished the Tribunal to consider, then he should have submitted those to the Tribunal either before, at or after the hearing of which he was notified. Having failed to do so, the only material before the Tribunal was the very limited information which the applicant had given to the Minister's department which the Tribunal did consider.

Tribunal failed to assess possibility of danger on return to Indonesia

1. To the extent that the Tribunal had information before it which reflected on the danger the applicant claims to fear in Indonesia, it was considered by the Tribunal as its decision record reveals. For the reasons already given in relation to the second ground of review, this third asserted ground of review cannot be made out.

Tribunal's decision too quick

1. Today the applicant said that the decision taken by the Tribunal was "too quick". When pressed on what he meant by this the applicant said that he wanted to stay longer in Australia. He does not suggest that the speed with which the Tribunal reached its decision indicates any reviewable error on its part. Given the failure of the applicant to supplement the information he had given to the department with further information which he might have given to the Tribunal, it is hardly surprising that the Tribunal was able to reach its decision quickly. Consequently, this asserted ground of review cannot be made out.

Generally

1. The Tribunal's lack of satisfaction that the applicant met the criteria for a protection visa arose in large part out of the applicant's failure to attend the Tribunal hearing. Although the applicant has not raised any issue concerning the effectiveness of the notification to him of the Tribunal hearing, the first respondent has led evidence to demonstrate that the relevant statutory and regulatory requirements were satisfied. I am satisfied from the material contained in the Court Book and the annexure to the affidavit of Miriam Mafessanti sworn 25 July 2007 that the hearing notification was sent to the applicant at the address for correspondence which he had advised to the Tribunal and met the requirements of s.441A(4)(c), 441C(4)(a) and reg.4.35D and that thus it met the requirements of s.425A(3) of the Act.

Arguable case

1. Turning to whether the applicant has demonstrated that the respondents should show cause why relief should not be granted to him, the application on the face of it suggests the possibility of an arguable case.

2. An order to show cause will not be made if the applicant does not have an arguable case but the authorities show that an application should not be dismissed under r.44.12 unless the lack of a cause of action is clearly demonstrated (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129) or the claim is groundless (Dey v Victorian Railways Commissioners (1948) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575 to 576).

3. In this case, notwithstanding the way the application has been drawn, in the articulation of his claims today and following a consideration of the Tribunal's decision, I am of the view that the applicant's claim is not truly arguable. On the arguments made by the applicant based on his application, together with the evidence before the Court, his application is certain to fail. For that reason it will be dismissed pursuant to r.44.12.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  19 November 2007