SZLKB v Minister for Immigration
[2007] FMCA 2144
•18 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLKB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2144 |
| MIGRATION – RRT decision – Indonesian woman claiming harassment for Chinese ethnicity – 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.36(2), 426A(1)
Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407
| Applicant: | SZLKB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3002 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 18 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms B Anniwell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
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.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3002 of 2007
| SZLKB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in March 2007, and lodged an application for a protection visa without any apparent assistance. It contained a very brief statement claiming: “I am discriminated by the local Indonesia because my ethnic is Chinese”, and expressing the fear: “I might be raped by the local Indonesia if I return to Indonesia”. It also said:
I was ever sexually harassed by the local Indonesia. I was a small business woman. But my business was destroyed by the local Indonesian. My money and belongings were looted by the locals.
No details nor corroboration of these claims was provided to the Department of Immigration, or to the Refugee Review Tribunal. A delegate refused the application on 3 May 2007, and her decision was affirmed by a decision by the Refugee Review Tribunal handed down on 28 August 2007.
The Tribunal referred to an invitation to attend a hearing of the Tribunal appointed for 3 July 2007, which was posted to the applicant by letter dated 1 June 2007. The letter was sent to the address given by the applicant to the Tribunal as her address for correspondence. It was many weeks later returned to the Tribunal marked “Unclaimed”. The circumstances in which this happened are not shown in any evidence before the Court.
The Tribunal in its statement of reasons referred to the fact that it received no response to its invitation, and that there was no attendance at the hearing and no contact to the Tribunal. It said that it had decided to make a decision on the review without taking any further action to enable the applicant to appear before it pursuant to its powers under s.426A(1) of the Migration Act 1958 (Cth).
On the evidence before me, I can see no arguable basis for finding a miscarriage in the Tribunal’s procedures, nor in its decision to proceed under that section. There is clear authority that the Tribunal may do this even in circumstances where, in fact, the applicant did not receive the letter of invitation (see SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17], citing VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14], and Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365).
In its statement of reasons, the Tribunal referred to the absence of details about the incidents claimed by the applicant, and that it did not have an opportunity to explore the details or veracity of the applicant’s claims. It said that it was “not satisfied that the applicant suffered past persecution or that she faces a real chance of being persecuted now or in the reasonably foreseeable future if she returns to Indonesia in relation to her race, her religion, or membership of a particular social group”. It was not satisfied that she had a well‑founded fear of persecution for a Convention‑related reason or any other reason.
I have considered the procedures and reasoning of the Tribunal and can see no arguable jurisdictional error affecting its decision.
The application before me asks the Court to set aside the Tribunal’s decision and to order it to reconsider her claims. The 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 her application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice.
However, she has not filed any further documents, and relies only upon her original application. This contained two grounds:
1.There was no evidence or the other materials to justify the making of the decision.
2.I am entitled to a protection visa.
The first ground is misconceived. The Tribunal’s decision was explained and justified by the absence of evidence which satisfied it that the applicant was a refugee in terms of s.36(2) of the Migration Act.
The second ground maintains a matter which it is not the task of the Court to decide.
The applicant today had no submissions to make raising any arguable jurisdictional error affecting the Tribunal’s decision. I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under Rule 44.12(1)(a).
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 11 January 2008
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