SZLJR v Minister for Immigration
[2008] FMCA 120
•1 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 120 |
| MIGRATION – RRT decision – Indian applicant claiming political persecution – did not attend adjourned hearing – no jurisdictional error shown – application dismissed. |
Migration Act 1958 (Cth), ss.424A(1), 425
| First Applicant: | SZLJR |
| Second Applicant: | SZLJS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2988 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 1 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2008 |
REPRESENTATION
| Counsel for the Applicants: | First Applicant in person |
| Counsel for the First Respondent: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2988 of 2007
| SZLJR |
First Applicant
| SZLJS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The two applicants are a husband and wife who came to Australia from India in February 2007. They lodged applications for protection visas on 30 March 2007, in which only the husband made claims to be a refugee. I shall refer to him as “the applicant”.
A brief statement attached to the application said that he had joined the Congress Party, when living in Mumbai and conducting a business there. He claimed that his activities incurred harassment from members of other parties, such as the BJP and Shiv Sena. He lodged a complaint about them, but “police could not find them but police said they were very notorious people and believe in strong fanatic Hindu policy”.
He referred to travelling overseas in 2006, and said that on his return: “I started to participate in political campaigns every day”. He said that one day he had been attacked when returning home in his car. He then made a plan to come to Australia. He claimed that since he arrived here: “I came to know that they people attacked on my home and hurt my mother. They tried to find me. They wanted to kill me. My family did not say them anything about me”.
A delegate refused the application on 30 April 2007, and the applicant appealed. He presented no additional information or evidence to the Tribunal.
The Tribunal appointed a hearing to be held by video connection from Griffith on 2 July 2007, but two days before the hearing the applicant sent a medical certificate of unfitness to work due to unspecified illness, and he requested an adjournment.
The Tribunal sent to the applicant a letter dated 3 July 2007 appointing an adjourned hearing on 24 July 2007. Once again, a venue for the hearing was appointed in the applicant’s own town of Griffith. The letter told the applicant:
The Member reviewing your case has asked me to advise you that no further postponement of the hearing will be granted on medical grounds unless you provide the Tribunal with a full report from your treating doctor indicating why you are unable to attend a hearing before this Tribunal. A letter stating that you are ‘unable to work’ will not be sufficient.
The applicant did not attend the appointed hearing, and did not contact the Tribunal until after the hearing. On 13 August 2007 he telephoned the Tribunal, and there is a note by a Tribunal officer indicating that the applicant said “that he had been too unwell” to attend. He was advised by the officer “that he may forward a fax to the Tribunal today explaining why he did not attend the hearing and why he did not inform the Tribunal that he would not attend the hearing. He stated that he will forward the fax tomorrow morning”.
However, the applicant did not forward anything to the Tribunal, and it proceeded to make a decision which affirmed the delegate’s decision.
In its statement of reasons handed down on 4 September 2007 the Tribunal narrated the history of the matter, as I have set it out above. Under the heading “Findings and Reasons”, it said that the applicant’s claims were lacking in details “and amount to a series of bare assertions”. The Tribunal said that it was not able to be satisfied on the basis of the material that the applicant was active in the Congress Party, nor as to the other events that he said had occurred. It was unable to be satisfied that the applicant had a well‑founded fear of being persecuted for a Convention reason if he returned to India. It therefore affirmed the delegate’s decision.
The applicants’ application asks the Court to set aside the Tribunal’s decision and to order it to reconsider their refugee claims. The application was set down for a final hearing today, and the applicants have had opportunity to obtain free legal advice and to file further submissions and evidence.
The applicants have filed a document headed “Applicants Outline of Submissions on 44.12 Application” but no other documents. Unfortunately, that submission misapprehends the fact that the application was set down for a final hearing today, as was plain in the orders which I explained, and gave, to the applicant at the first court date. The body of the submission also shows that it relates to a different decision of the Tribunal concerning a different matter. There is therefore no substance in any of the contentions in the submission that the Tribunal made its decision contrary to evidence and based on biased findings as to credit.
Nor is there any substance in the three grounds set out in the original application:
1.That the tribunal’s decision was in breach of section 424A (1) of the Migration Act.
2.That the tribunal made error of law and lack procedural fairness and therefore committed Jurisdictional error.
3.That the tribunal made denial of natural Justice. Because it failed to provide further opportunity to appear hearing before the tribunal.
I can see no arguable basis for finding a breach of s.424A(1) of the Migration Act 1958 (Cth).
Nor in my opinion do the procedures followed by the Tribunal, which I have narrated above, reveal any failure of natural justice insofar as its requirements are reflected in the Tribunal’s obligations under s.425. The applicants were given the opportunity required to be given to them under s.425 to attend a hearing. At no time have they presented to the Tribunal, or to this Court, any evidence establishing an inability to avail themselves of that opportunity. I am therefore not satisfied that Grounds 2 or 3 have been made out.
The application was listed for hearing at 10.15 am today, and I dismissed it in the absence of the applicants at 10.32 am. The applicant subsequently arrived, and I was able to reconvene the hearing by recalling the solicitor for the Minister and obtaining the services of the interpreter by telephone.
The applicant was given an opportunity to develop arguments to show that the Tribunal’s decision was affected by jurisdictional error. However, he had no submissions to make, and indeed had nothing to say to me.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error, and I must therefore dismiss the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 8 February 2008
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