SZLAJ v Minister for Immigration

[2007] FMCA 1695

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLAJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1695

MIGRATION – RRT decision – Indian Hindu claiming persecution by Muslims – did not attend Tribunal hearing – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.425, 426A(1), 429A

Migration Regulations 1994 (Cth)

Applicant: SZLAJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2061 of 2007

Judgment of: Smith FM

Hearing date: 2 October 2007

Delivered at: Sydney

Delivered on: 2 October 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms E Baggett

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2061 of 2007

SZLAJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant applied in January 2007 for a protection visa on the ground that he feared persecution if he returned to his country of nationality, India. A statement attached to his visa application made general claims that he had been harassed and attacked by people who he thought belonged to a Muslim organisation. He claimed that this occurred because he was an active member of a Hindu organisation, the VHP. He gave few details of his claims and no supporting evidence to the Department, nor to the Tribunal when he appealed from a decision of a delegate which was made on 21 February 2007.

2. His application to the Tribunal did not appoint an agent or authorised recipient for correspondence, but told the Tribunal to send all correspondence about his application to a post office box at Griffith. The Tribunal sent to the applicant at that address a letter dated 10 April 2007, informing him that the Tribunal was unable to make a favourable decision on the information before it. The letter invited him to participate in a hearing to be held by videolink, in which the applicant was asked to attend at the Griffith police station on 28 May 2007 for the hearing. I am satisfied this invitation was served in accordance with the provisions of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth). The Tribunal was entitled to proceed by way of videolink under s.429A of the Migration Act.

3. However, the Tribunal received no response to its invitation, and the applicant did not attend at the appointed time and place. The Tribunal proceeded to make a decision under s.426A(1) of the Migration Act, which it handed down on 18 June 2007.

4. In its statement of reasons, the Tribunal assessed the claims which the applicant made in his visa application, and found that they amounted to “nothing more than unsupported allegations”. The Tribunal said that without an opportunity to question the applicant to explore his claims, it could not be satisfied that he had a well‑founded fear of harm for any Convention‑related reason in India in the reasonably foreseeable future.

5. The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider his refugee claim. His application has been listed today to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to amend the grounds of his application, and to file further evidence and written submissions, after receiving a bundle of relevant documents and a referral for free legal advice. He has, however, not filed anything other than his original application.

6. The grounds in his original application make unparticularised complaints of jurisdictional error, breach of natural justice, and an obscure complaint that the Tribunal made its decision too quickly. However, I do not consider that these contentions raise an arguable case, and I am unable to see any argument of jurisdictional error which has any prospect of success.

7. The applicant has not presented evidence to the Court explaining his absence from the Tribunal’s hearing. There is no evidence that he ever sought more time from the Tribunal or explained his absence. He told me today that he had been working at Euston on the hearing day, and found it difficult to get to the hearing. He also suggested that he had not attended because he had no evidence to give to the Tribunal to establish his claims. Whatever the reason, he has not presented any evidence to the Court raising any arguable failure by the Tribunal to afford the applicant the opportunity required by s.425 of the Migration Act.

8. I can see no arguable defect in the Tribunal’s decision to proceed under s.426A(1). I can see no aspect of its reasoning which suggests an arguable jurisdictional error. I am therefore not satisfied that the application has raised an arguable case for the relief claimed, and I consider that it is appropriate to dismiss the application under r.44.12(1)(a).

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

Associate:  Lilian Khaw

Date:  10 October 2007