SZLDS v Minister for Immigration
[2008] FMCA 123
•30 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLDS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 123 |
| MIGRATION – Review of RRT decision – where applicant did not appear at Tribunal hearing – where Tribunal unable to reach state of satisfaction. |
| NAST v Minister for Immigration [2004] FCA 86 |
| Applicant: | SZLDS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2427 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 January 2008 |
| Date of last submission: | 30 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $3,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2427 of 2007
| SZLDS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Indonesia who arrived in Australia on 28 October 2006. On 22 November 2006 he applied to the Department of Immigration and Citizenship for a protection (class XA) visa. On 14 February 2007 a delegate of the Minister declined to grant a protection visa and the applicant sought review of that decision from the Refugee Review Tribunal by filing an application on 14 March 2007.
On 12 April 2007 the Tribunal wrote to the applicant at the PO Box address which he had given as his address for correspondence [CB 51], advising him that the Tribunal would hold a hearing into his claims on 4 June 2007, and invited him to appear and give oral evidence and present arguments. On 30 April 2007 the applicant responded to that hearing invitation [CB 58] advising that he would attend and that he required an Indonesian interpreter. On 17 May 2007 the Tribunal wrote again to the applicant at the PO Box address informing him that unfortunately the Tribunal could not conduct the hearing on the day originally planned, but would conduct the hearing on 7 June 2007. The applicant did not respond to that letter and did not appear at the hearing. On 12 June 2007 the Tribunal determined to affirm the decision not to grant the protection visa and handed down that decision on 5 July 2007.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations were that he was a Balinese Hindu who was required to leave his home country because he feared for his safety. He had worked for his uncle who was an electrician. In June 2006 his uncle had been asked to quote for a job. He refused to do the job because he believed that the people who wished him to work for them were part of the Nurdin terrorist group. The applicant claimed that after the uncle and he had refused to undertake the work, the group were angry and made problems for them. He said that both he and his uncle made arrangements to leave Indonesia. He travelled to Australia and his uncle travelled to America. He felt that if he returned to Indonesia the terrorist group would find him and possibly kill him.
In its decision the Tribunal recites in the “Claims and Evidence” section the matters adumbrated above and quotes in some detail from the application for a protection visa which, in the absence of the applicant, would be the best evidence of his fears.
The Tribunal in its findings and reasons concluded that the claims of the applicant were vague and did not provide sufficient detail of the perceived threat. There were no details of the job the uncle was asked to provide a quote for, why he felt that they were being threatened or the basis of such a threat: [CB 71]-[72].
The Tribunal is required to assess whether the applicant has a real chance of being persecuted in Indonesia for a [C]onvention based reason. There is no evidence that is able to satisfy the Tribunal of this fact. The applicant's claims have not been able to be tested further at hearing and thus the Tribunal is only able to base its decision on the material that is before it.
There is no evidence before the Tribunal which would negate the proposition that if the applicant did hold some fear based on his claims that he would not be able to avail himself of state intervention from the relevant authorities in Indonesia.
There is no evidence before the Tribunal that would suggest that if the applicant was not able to return to his home in [place] in Bali that he would not be able to relocate to another part of the Indonesian archipelago
…
Due to the deficiency of detail provided to the Tribunal the Tribunal cannot be satisfied that the applicant has a fear of persecution for a Convention based reason if he is to return to Indonesian. A refugee claimant clearly needs to satisfy a decision maker that the statutory elements that are required to be satisfied with the grant of a visa are made out. The claims as noted in this case amount to a vague and uncorroborated assertion that the applicant's uncle, who is apparently some sort of electrical contractor, and the applicant, his labourer, will be killed by an Indonesian terrorist group because the applicant's uncle refused to undertake work for them.
The Tribunal cannot, on the basis of the evidence before it, be satisfied that the applicant has a genuine fear of harm that amounts to persecution for a [C]onvention based reason.”
In NAST v Minister for Immigration [2004] FCA 86, Allsop J said at [6]-[7]:
My task in an application such as this is to ensure that the tribunal has approached the matter lawfully so that it can be assessed one way or another whether the claims of the applicant have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.
Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things it must not grant a visa. Here, the Tribunal had the claims of the applicant in writing before it and it gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone and the version of events given by the applicant.”
The situation that pertained in NAST is similar to the one that pertains in this case. The Tribunal had a set of papers with claims in it and was not satisfied on those papers alone that the claims amounted to a genuine ground for providing protection. The Tribunal invited the applicant to a hearing so that he could better explain matters that would perhaps permit the Tribunal to come to the state of satisfaction that was required. For reasons which are not explained, the applicant did not appear. The Tribunal acted in accordance with its statutory right to proceed to the decision without hearing from the applicant and not unnaturally was unable to reach the state of satisfaction required on the evidence before it.
In his application to the court, the applicant states that the Tribunal had failed to address the full claims. That statement cannot be made out given the full rehearsal of the applicant's claims that I have already referred to.
In his second ground the applicant states that the Tribunal was unreasonable in making a finding that he would not face a risk of being persecuted upon return to Indonesia. This is a claim which goes to the merits of the Tribunal's decision, and which is not a matter that the court can consider under the legislation.
Finally, the applicant stated that the Tribunal failed to adequately consider that he would be in danger if he returned to Indonesia. The Tribunal did consider this matter but expressed a view that it was the applicant's duty to make out his case although discussion of that matter in terms of burden of proof was not appropriate. The Tribunal concluded that the applicant had not satisfied it and it was therefore unable to grant the visa.
Before me today the applicant stated that there was not sufficient evidence before the Tribunal. In this he was correct. But he was otherwise unable to assist me to ascertain why the Tribunal had fallen into jurisdictional error. I am unable to find such an error. I dismiss the application.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 February 2008
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