SZKSJ v Minister for Immigration
[2007] FMCA 1918
•9 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1918 |
| MIGRATION – Failure to appear after s.425 invitation – applicant cannot complain about his failure to provide evidence to establish his claims. |
| Migration Act 1958 (Cth), ss.426A, 425, 474 |
| SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZKSJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1728 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 9 November 2007 |
| Date of last submission: | 9 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms E. Warner-Knight of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1728 of 2007
| SZKSJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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
On 22 December 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution because:
…terrorists were pursuing him because he refused their job and they became angry with him. He believes that the authorities of his country cannot protect him. (CB 19, 60)
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). The matter is now before this Court pursuant to an application for judicial review filed on 1 June 2007.
Issues for determination
The main issues before the Court are as follows:
·The failure of the applicant to appear after a s.425 invitation, and the impact of that on the decision making processes of the Tribunal;
·The failure of the applicant to establish his case to the satisfaction of the Tribunal.
The application
In his application, the applicant set out three grounds as follows:
(1)I face a risk of being killed by terrorists if I go back to Indonesia. I refused jobs which terrorists asked me to do, and those terrorists became angry with me.
(2)The Refugee Review Tribunal did not fully consider the current situation in Indonesia.
(3)I believe I satisfy the criterion for a protection visa.
Findings of the Court in relation to the grounds in the application
The applicant was invited to attend the hearing before the Tribunal and was advised that the Tribunal was unable to make a favourable decision on the information before it (CB 48). The applicant did not attend the hearing (CB 52). When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ (ante) per Downes J at [5].
The Tribunal found at CB 60:
The Tribunal has 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.
Ground one complains that certain findings of fact were not made. The failure of the applicant to attend at the hearing prevented the Tribunal from being satisfied that the applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted if he goes back to Indonesia. Upon the failure of the applicant to appear, the Tribunal was empowered to make a decision without taking any further action to allow or enable the applicant to appear before it (s.426A). The Court finds no error of law or fact. Ground one is rejected.
Ground two complains that the Tribunal did not fully consider the current situation in Indonesia. The Tribunal had before it the country information referred to at CB 37.1. “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70. The Court applies the following submissions in another matter:
The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.
The applicant cannot complain about his failure to provide information to establish his case. As a result of the applicant’s conduct, the Tribunal was in a position where it could not be satisfied as to the applicant’s claims. No error of law or fact has been established. Ground two is rejected.
Ground three is an allegation that was not established to the satisfaction of the Tribunal. The ground seeks a review of the merits which is not part of the function of this Court. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Ground three is rejected.
The applicant was invited to put further submissions in support of his case, but declined that invitation.
Conclusion
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.
Accordingly, the application is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 20 November 2007
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