SZKSI v Minister for Immigration and Citizenship

[2008] FCA 538

FEDERAL COURT OF AUSTRALIA

SZKSI v Minister for Immigration and Citizenship [2008] FCA 538

SZKSI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2331 OF 2007

SACKVILLE J
29 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2331 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKSI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SACKVILLE J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the Respondent fixed in the sum of $1060.

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 2331 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKSI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SACKVILLE J
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

EX TEMPORE JUDGMENT

1This is an appeal from a judgment of the Federal Magistrates Court given on 12 November 2007 (SZKSI v Minister for Immigration and Anor [2007] FMCA 1923). The Federal Magistrate dismissed an application for a review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the first respondent (‘the Minister’), refusing the appellant’s application for a protection visa. 

2The matter has been called and the appellant has not appeared.  Ms Combes, who appears on behalf of the Minister, has applied to the court for an order that the appeal be dismissed by reason of the failure of the appellant to attend the hearing.  The application is made pursuant to Federal Court of Australia Act 1976 (Cth), s 25 (2B)(bb)(ii).

3The appellant is an Indonesian citizen born in 1971.  He was born in Denpassar, Bali and lists his ethnic group as Balinese and his religion as Hindu.  In his application for a protection visa the appellant stated that he had worked for a particular person in Indonesia over a period of five years as a driver and helper.  He claimed that he and his employer had been threatened by terrorists because his employer had refused a contract that he deemed to be too risky.  According to the appellant, his employer arranged a visa for him to travel to Australia.  These claims were not supported by any detailed information. 

4The Minister’s delegate refused the appellant’s application for a protection visa on 10 January 2007.  On 9 February 2007 the appellant applied to the Tribunal for a review of that decision.  On 8 March 2007 the Tribunal sent the appellant a written invitation to appear before it on 5 April 2007 (‘the Invitation’).  The Invitation indicated that the Tribunal had been unable to make a favourable decision on the information provided by the appellant to that point.  The Invitation also indicated that an Indonesian interpreter would be provided.

5On 26 March 2007 the appellant completed and forwarded to the Tribunal a written response to the Invitation.  His response indicated that he wished to attend the hearing and confirmed that he required an interpreter.  Despite this response the appellant neither attended the hearing nor contacted the Tribunal to explain his failure to attend.

6In these circumstances the Tribunal decided to make a decision on the application for review without taking any further action to enable the appellant to appear before it. The Tribunal acted pursuant to section 426A of the Migration Act 1958 (Cth) which provides that where an applicant is invited to appear before the Tribunal, but does not do so at the scheduled time and place, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

7The Tribunal made its decision on 5 April 2007, and on 1 May 2007 notified the appellant of that decision.  After recording the course of events, the Tribunal noted that it had identified a number of issues upon which it required a good deal more detail in evidence from the appellant.  These included the nature of the threats made against him by terrorists and details of any unsuccessful attempts to seek protection by reason of those threats.

8In the absence of information of this kind the Tribunal could not be satisfied that the appellant was in genuine fear of persecution and that there was a real chance that he would be persecuted on his return to Indonesia.  Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the status of refugees.

9The appellant appeared at a judicial review application before the Federal Magistrates Court on 12 November 2007.  He was not legally represented.  He filed a pro forma application in the Court which did not provide particulars of his assertion that the Tribunal had made its decision in excess of jurisdiction.

10The Federal Magistrate recounted the history of the matter.  His Honour rejected the grounds relied on by the appellant and concluded that the Tribunal’s decision had not been infected with jurisdictional error.  His Honour therefore dismissed the application.

11The notice of appeal filed by the appellant asserts without any particulars that the Tribunal failed to afford him natural justice.  The appellant has not filed any written submissions.  He has not appeared in Court today.  The evidence indicates that he has received notice of the hearing but has, despite that notice, not attended.

12The appeal is plainly without merit and should be dismissed.  I therefore make the orders sought on behalf of the Minister.  I dismiss the appeal.  I order the appellant to pay the Minister’s costs of the appeal. 

13The affidavit of Denise Attar, affirmed on 28 February 2008, may be read in connection with the Minster’s application for costs.  The Minister has applied for a costs order in a fixed amount pursuant to the Federal Court Rules.  In view of the affidavit evidence that is filed I fix the amount of costs to be paid to the Minister by the appellant as $1060.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:        21 April 2008

Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	Ms L Combes
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 February 2008
Date of Judgment:	29 February 2008