SZLDS v Minister for Immigration and Citizenship

[2008] FCA 804

FEDERAL COURT OF AUSTRALIA

SZLDS v Minister for Immigration and Citizenship [2008] FCA 804

SZLDS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 209 OF 2008

DOWSETT J
13 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 209 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLDS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	13 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the first respondent’s costs of the appeal, fixed at $1,038.

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 209 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLDS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	13 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant claims to be a Hindu Balinese and citizen of Indonesia.  He entered Australia on 28 October 2006 and, on 22 November 2006, applied for a protection visa.  The application was refused by the Minister’s delegate.  On 14 March 2007, the appellant applied to the Refugee Review Tribunal (the “Tribunal”) for review of the decision.  That application was unsuccessful.  On 7 August 2007, he applied to the Federal Magistrates Court for review of that decision.  On 30 January 2008, that application was dismissed.  This is an appeal from that decision.  The only material provided in support of his application was in the application form itself.  It is set out in the Tribunal’s reasons.  He claimed that:

   I am Balinese and a Hindu.  I leave my home country because I fear for my safety.  After I stopped my studies, then I followed my uncle as his helper to labour in electric for more than four years.  On June 2006, my uncle got one job so he went there to see the job but the job become too risk social life so my uncle to reject their job not to do it.  Then they were angry with us and made problem to us.  Because they are a group of Nardin’s, N-a-r-d-i-n-‘s, terrorist group members, so my uncle fear they would chase us up to kill us, therefore my uncle arrange our travel document.  He accompany me to Australia then he went to America.  I came to Australia to seek protection in Australia so as I can remain in Australia calm and safety.

2. In the application form the following questions and the appellant’s answers appeared:

   Q.  What do you think may happen if you go back to that country?

   A.I fear the group of terrorists member to chase us up to kill me if I go back to my country.

   Q.Who do you think may harm/mistreat you if you go back?

   A.The member of the terrorist group will mistreat me if I go back.

   Q.Why do you think this will happen to you if you go back?

   A.Because we reject their job not to do it so they very angry as us their enemy, so if I go back they will chase to me up to kill me.

   Q.Do you think the authorities of that country can and will protect you if you go back?  If not, why not?

   A.Not.  The authorities of my country not full power and not time to protect their people.

3. The Tribunal invited the appellant to attend a hearing to give evidence and make appropriate submissions.  The original date fixed for the hearing was vacated and a new date fixed.  The appellant did not appear.  It has not been suggested that any irregularity attended the Tribunal’s notification of the original or altered hearing date.  In those circumstances, it is difficult to see how the Tribunal could have done anything other than dismiss his claim.  It said:

   The claims of the applicant are vague and do not provide sufficient detail of the perceived threat.  There is no detail of the job that the applicant’s uncle was asked to provide a quote for.  There is no detail of why the applicant’s uncle perceived a threat and the basis of any threat from the Nurdin terrorist group.  There is no evidence of the applicant and his uncle seeking intervention from the Indonesian authorities and/or why they failed to intervene.  There is no evidence as to why the applicant was brought to Australia and why his uncle then travelled to the United States. 

   The Tribunal is required to assess whether the applicant has a real chance of being persecuted in Indonesia for a convention 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 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 appellant 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 Negara, Jembrana in Bali, he would not be able to relocate to another part of the Indonesian Archipelago.

4. In those circumstances, the Tribunal dismissed the application.  It was simply unpersuaded as to the claim.  To my mind, that decision is beyond challenge.  However, as I have said, the appellant applied to the Federal Magistrates Court for review of the decision.  The grounds were said to be:

   1.The Tribunal failed to address the full claims of my application for a protection visa. 

   2.It is not reasonable for the Tribunal to make the finding that I would not face a risk of being prosecuted on returning to Indonesia.

   3.The Tribunal did not adequately consider that I would be put into danger if I went back to Indonesia.

5. It is simply impossible to give serious consideration to any one of these grounds in view of the Tribunal’s finding that it was not satisfied as to the appellant’s claim because of its lack of detail and the lack of any opportunity to investigate it by questioning him.  Nonetheless, the federal magistrate carefully considered the matter as best he could on the material available and dismissed the application.  He was clearly correct to do so.  Nonetheless, the appellant appealed to this court.  The grounds of appeal are as follows: 

   1.It is not reasonable for the Tribunal to make the finding that I would not face a risk of being prosecuted on returning to Indonesia.

   2.The Tribunal failed to address the full claims of my application for a protection visa.

   3.The Tribunal did not adequately consider that I would be put into danger if I went back to Indonesia.

6. These grounds, of course, do not even pretend to be grounds of appeal from the decision of the federal magistrate.  They are nothing more than a slightly re-cast version of the grounds upon which the appellant sought review of the Tribunal’s decision.  There is no reason to believe that the Tribunal failed to address his claim to the extent that it had been disclosed.  There is nothing unreasonable about its conclusion, and there is no reason to believe that it did not give consideration to the fact that the appellant claimed that he would be in danger in Indonesia.  The point is that the Tribunal simply was not persuaded that his claim was genuine.  In those circumstances, the appeal must be dismissed. 

7. In a jurisdiction in which dubious claims are regularly seen, this is one of the worst examples.  By writing one paragraph and a few other short sentences, which said virtually nothing to justify his claim to refugee status, he has managed to remain in the country for more than a year.  Further, he has caused the consumption of substantial resources in the Department, the Refugee Review Tribunal, the Federal Magistrates Court and this Court.  It is, I think, most unfortunate that we have not yet developed a system, either legislative or judicial, by which such a clear abuse can be terminated before large amounts of resources have been expended. 

8. The appeal will be dismissed.  There will be leave to read and file the affidavit of Alissa Crittenden, sworn on 13 May 2008.  I order that the appellant pay the first respondent’s costs fixed at $1,038.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:
Dated:       29 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear

Date of Hearing:	13 May 2008
Date of Judgment:	13 May 2008