SZKRT v Minister for Immigration

[2007] FMCA 1299

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKRT v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1299

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss.424A, 426A

Applicant: SZKRT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1672 of 2007

Judgment of: Driver FM

Hearing date: 6 August 2007

Delivered at: Sydney

Delivered on: 6 August 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms G Broderick
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,150.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1672 of 2007

SZKRT

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 Tribunal decision was signed on 2 April 2007 and was handed down on 26 April 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Indonesia and arrived in Australia on 8 December 2006.  He applied to the Minister's Department for a protection visa on 20 December 2006.  The delegate refused that application on 10 January 2007.  The applicant applied to the Tribunal for review of the delegate's decision on 9 February 2007.

2. The applicant had made very general claims which the Tribunal was unable to accept at face value. Accordingly, on 2 April 2007 the Tribunal invited the applicant to a hearing. The applicant responded on 22 March 2007 indicating that he wanted to attend the hearing (court book, page 59). It must follow from that that the applicant received the hearing invitation. However, the applicant did not appear before the Tribunal at the scheduled time and did not contact the Tribunal to explain his absence. In the circumstances, the Tribunal proceeded pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) to make its decision in the absence of the applicant. On the very limited material available to it, the Tribunal was unable to be satisfied that Australia owed any protection obligations to the applicant.

3. These proceedings began with a show cause application filed on 28 May 2007.  That application asserts actual notification of the Tribunal decision on 7 May 2007.  On that basis I find that the application was filed within time.  The application was accompanied by an affidavit in which the applicant states that he does not want to go back to Indonesia.  That statement is uncontroversial and requires no proof.  The affidavit also annexed copy of the decision of the Tribunal which is also reproduced in the court book.  I received the court book as evidence.

4. The applicant now relies upon an amended application filed on 5 July 2007.  The application contains four grounds.  The first is that the Tribunal decision did not take into account that the applicant would be placed in danger if he returns to Indonesia.  That appears to be an attack on the merits of the Tribunal decision.  To the extent that it is meant to be an assertion that the Tribunal did not consider the applicant's claims, I reject it.  Plainly, the applicant's claims were considered by the Tribunal.

5. The second ground is that the only information before the Tribunal was that contained in the first respondent's file and that given to the Tribunal by the applicant. That assertion appears to be correct, however, it does not suggest any jurisdictional error. The Tribunal was entitled to limit itself to the information provided by the applicant. The second and third grounds represent an asserted a breach of s.424A of the Migration Act. The court book discloses that no letter was sent to the applicant pursuant to that section. However, none needed to be.

6. The Tribunal decision turned upon the insufficiency of the limited information provided to the Tribunal by the applicant. That insufficiency of information was not something requiring disclosure under s.424A. The applicant has not raised any issue concerning the hearing invitation. Neither has he raised any issue concerning the Tribunal's exercise of discretion pursuant to s.426A. In view of that, counsel for the Minister did not read an affidavit that would have gone to that issue.

7. I find that the applicant has failed to disclose any arguable case of jurisdictional error. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

8. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $2,150.  Scale costs in this instance would be $2,500.  The applicant said that he might require time to pay and queried his rights of appeal but otherwise did not make any submissions on costs.  I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,150.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  7 August 2007