SZKSI v Minister for Immigration

[2007] FMCA 1923

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKSI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1923

MIGRATION – Whether the decision was made in excess of jurisdiction – failure to appear before the Tribunal.

Migration Act 1958 (Cth), ss.425, 424A, 426A, 474

Applicant: SZKSI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1727 of 2007

Judgment of: Turner FM

Hearing date: 12 November 2007

Date of last submission: 12 November 2007

Delivered at: Sydney

Delivered on: 12 November 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L. Combes of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1727 of 2007

SZKSI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 5 April 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

Background

1. On 22 December 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that terrorists in Indonesian sought to kill him after his boss refused to accept their job offer (Court Book “CB” 19).

2. The application was refused by a delegate of the first respondent on 10 January 2007 (CB 34) and by the Tribunal on review on 5 April 2007 (CB 57).

3. The matter is now before this Court pursuant to an application for judicial review filed on 1 June 2007.

Issues for determination

1. The issue before the Court is whether the decision was made in excess of jurisdiction.

The application

1. In his application, the applicant set out three grounds as follows:

   (1)The decision of the Refugee Review Tribunal was not a private [sic privative] decision within the meaning of s.474 of the Migration Act 1958.

   (2)The decision the Refugee Review Tribunal was made in excess of the jurisdiction of the Tribunal and is consequently void and of no effect.

   (3)The Refugee Review Tribunal did no carefully consider my application for a protection visa.

Findings of the Court in relation to the grounds in the application

1. Ground one alleges that the decision of the Tribunal is not a privative clause decision. For the reasons expressed below, this ground is rejected.

2. Ground two alleges that the decision was made in excess of jurisdiction and is void. No particulars are given and no submissions have been made to establish this claim. The applicant was invited to the hearing before the Tribunal in compliance with s.425 of the Migration Act 1958 (Cth) (“the Act”) (CB 48) but the applicant failed to appear (CB 52). The Tribunal was therefore empowered to make a decision without taking any further action to allow or enable the applicant to appear before it: s.426A(1). The hearing before the Tribunal occurred at the time and date specified in the s.425 letter. The Tribunal affirmed the decision of the delegate because it had

   a number of issues upon which it requires a good deal more detailed evidence such as for example threats made against him by terrorists and unsuccessful attempts to seek protection in respect to these threats, before it could be satisfied that the applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted on his return to Indonesia. (CB 60.10)

   The decision of the delegate was affirmed because the applicant failed to establish his case. The Court finds that there was therefore no “information” that required disclosure under s.424A. The Court finds that the Tribunal acted within jurisdiction. Ground two is rejected.

3. Ground three alleges that the Tribunal did not carefully consider the application. The Tribunal considered the material before it but was unable to make a favourable decision on that information alone (CB 48). The applicant was notified of this and failed to provide any further material. As a result, the Tribunal could not be satisfied that the applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted if he returns to Indonesia (CB 60.10). It has not been established that the Tribunal did not carefully consider the application. Ground three is rejected.

Conclusion

1. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

2. Accordingly, the application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: M Giang

Date: 20 November 2007