SZLAH v Minister for Immigration - [2007] FMCA 1388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLAH v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1388

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

Migration Act 1958 (Cth), ss.425, 426A
Federal Magistrates Court Rules 2001 (Cth)

Applicant:

SZLAH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2039 of 2007

Judgment of:

Driver FM

Hearing date:

15 August 2007

Delivered at:

Sydney

Delivered on:

15 August 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Kantaria
Clayton Utz

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $1,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2039 of 2007

SZLAH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 25 May 2007 and was handed down on 14 June 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and had made claims of persecution based upon his membership of a particular social group of low cast Hindus. He arrived in Australia on 1 February 2005 and applied to the Minster’s department for a protection visa on 19 February 2007. The Minister’s delegate refused that application on 12 April 2007 and on

1 May 2007 the applicant sought review of that decision by the Tribunal.
The Tribunal was dissatisfied with the applicant’s written claims and on 9 May 2007 invited the applicant to attend a hearing on 12 June 2007. The letter relevantly stated that the Tribunal had considered all of the material before it but was unable to make a favourable decision on that information alone. The applicant responded, declining the hearing invitation: see court book page 90.
The Tribunal was thus left in the position that it was unable to make a favourable decision on the limited material before it. Relevantly the Tribunal stated[1]:
The applicant declined the invitation to a hearing and this leaves the Tribunal with claims which are untested and stated in the most general terms. The Tribunal was unable to explore with the applicant how, where, when and by whom he was discriminated against and persecuted, how, when, where and by whom his father was discriminated against and how that resulted in his having to close down his farm, how, where, when and by whom he and his colleagues in the social committee were humiliated and assaulted, how, where, when and in what circumstances he was involved in “false cases”, why and from whom his life was in danger, whether he had reported these events to the authorities and, if so, the outcome, whether he was able to seek and obtain the protection of the State, whether he was able to relocate to a safer place in India, what is likely to happen to him if he were to return to India in the foreseeable future and the reason for the delay of over two years in lodging his Application for a Protection Visa. .
[1] court book, pages 100-101
These proceedings began with a show cause application filed on

28 June 2007. The applicant asserts actual notification of the Tribunal decision on 20 June 2007. On that basis I find that the application was filed within time.
The applicant filed an amended application on 8 August 2007. The applicant was uncertain whether that amended application was meant to replace or augment the original application. He filed an affidavit with his original application on 28 June 2007 which I received as a submission. The applicant also filed further written submissions on

8 August 2007. The only evidence I have before me is the court book filed on 21 July 2007. The original application asserts a failure to follow proper procedures, a breach of the rules of natural justice, and a failure to appreciate facts and circumstances of the claims set down by the applicant. No particulars were provided. The accompanying affidavit repeats the assertion of failure to follow proper procedures and a failure to deal with the application in accordance with law. Again no particulars are provided.
The amended application appears generally to address the merits of the Tribunal decision. It may however be an attempt to provide particulars of the original application. Relevantly the applicant appears to be asserting that the Tribunal failed to address his written claims. Further, he appears to be suggesting that the Tribunal failed to deal with his review application in accordance with law and policy established by the UNHCR. The applicant relied upon his written submissions at the show cause hearing before me today.
There is, in my view, no substance to the applicant’s claims. The Tribunal, in its decision, recited in unobjectionable terms the relevant law on pages 97 and 98 of the court book. The Tribunal was aware of and recited the applicant’s claims on pages 99 and 100 of the court book. The simple fact was that there was not enough before the Tribunal to permit it to make a favourable decision. That difficulty is plainly reflected in the Tribunal decision.
The Tribunal noted that the applicant had been invited to attend a hearing but had declined that opportunity. There is no doubt that the applicant received the hearing invitation because he responded to it. Having declined the hearing opportunity the decision made by the tribunal was almost inevitable.
The Tribunal purported to exercise its discretion pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) to make a decision on the review without taking any further action to enable the applicant to appear before it. It is not obvious to me that resort to that discretion is necessary in a circumstance where an applicant expressly declines a hearing invitation issued pursuant to s.425 of the Migration Act.

If resort to that discretion is necessary, which I doubt, the Tribunal was entitled to exercise it against the applicant.
I find that no arguable case of jurisdictional error has been established by the applicant and neither is any such arguable case of jurisdictional error apparent to me in my own reading of the material. I will order that the application be dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $1,900. Scale costs in this instance would be $2,500. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $1,900.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 17 August 2007