SZLQP v Minister for Immigration
[2008] FMCA 98
•4 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 98 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India based on his race and political views – applicant failing to attend Tribunal hearing – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A, 426A Migration Regulations 1994 (Cth) |
| Applicant: | SZLQP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3577 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 4 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Crittenden Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3577 of 2007
| SZLQP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 1 November 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and had made claims of persecution based upon his race and political views. He arrived in Australia on 30 April 2007 and applied for a protection visa on 17 May 2007. The delegate refused that application on 29 June 2007. The applicant sought review of that decision before the Tribunal on 25 July 2007. The applicant was invited to appear at a hearing before the Tribunal by letter dated 6 August 2007. He did not respond and did not appear at the scheduled time. The Tribunal proceeded to deal with the matter in his absence pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal noted that the applicant's claims could not be tested by it due to his absence. The Tribunal noted that the applicant's written claims amounted to unsubstantiated assertions. The Tribunal was not satisfied on the material before it that the applicant would be unsafe in India.
These proceedings began with a show cause application filed on 19 November 2007. That application was supported by an affidavit filed on the same day. I received paragraphs 1, 2 and 4 of that affidavit as evidence and paragraph 3 as a submission. I also have before me as evidence the court book filed on 7 January 2008. The applicant now relies upon an amended application filed on 14 January 2008. That application contains nine grounds which I discussed with the applicant during the course of oral argument today.
The first ground asserts a breach of s.424A of the Migration Act. The particulars refer to what is described as independent information concerning the adequacy of State protection. There are two difficulties with that ground: the first is that the Tribunal did not rely on such information in making its decision; the second is that even if it had relied on such information, it is likely to have not required disclosure under s.424A.
Grounds 2, 4 and 9 appear to be attacks on the merits of the Tribunal decision. As I explained to the applicant, the Court cannot review the merits. Neither is there any substance to the asserted breach of s.91R(2)(a) of the Migration Act in ground 5. Ground 8 accuses the Tribunal of illogicality, but also does not rise above a contest over the merits of the applicant's claims.
Ground 3 asserts a failure to take into account elements or integers of the applicant's claims and refers to the applicant's inability to give an oral statement at a hearing. I explored that ground with the applicant. He initially said that he did not anticipate a hearing. He said that while he received correspondence from the Tribunal he did not know what was in it because he does not read English. I expressed some surprise at that and inquired why the applicant did not have the letters read to him. The applicant then told me that some of the letters were read to him but he does not recall the hearing invitation being read. He later said that he found out about the hearing invitation after the scheduled date for the hearing had passed, but for some reason he assumed that he would be invited to another hearing. He made no approach to the Tribunal to request a further hearing. Neither could he tell me of anything further he would have said to the Tribunal apart from responding to its questions. The Tribunal considered all of the applicant's claims that were before it when it made its decision. If the applicant had anything further to say the Tribunal was not aware of it.
The Tribunal's hearing invitation (court book, pages 49 to 51) was sent in accordance with the requirements of the Migration Act and the Migration Regulations 1994 (Cth). The exercise of discretion by the Tribunal, pursuant to s.426A of the Migration Act was properly enlivened and exercised. The applicant had provided only one means for the Tribunal to contact him and that was the means used by the Tribunal. He had not nominated an authorised recipient to receive correspondence and had provided no telephone number. As the applicant himself now admits, it was his own fault that he missed out on the hearing opportunity that was offered to him. It follows that Ground 3 is not arguable,
Likewise, there is no substance to ground 6. The Tribunal itself stated that it looked at the material before it as a whole (court book, page 70). The Tribunal did not require independent evidence of facts before accepting them. The Tribunal was simply unable on the limited material before it to reach the state of satisfaction required by the Migration Act before a favourable decision could be made.
Ground 7 is an obscure reference to country information which appears to have played no part in this decision. In terms of the assertion at paragraph 3 of the applicant's affidavit, I see no arguable case of jurisdictional error including any constructive failure to exercise the Tribunal's jurisdiction or a denial of procedural fairness. It is unfortunate that the applicant missed out on a hearing opportunity which may have had some impact on the outcome of his review application. However, he has no one to blame for that missed opportunity but himself.
I find that there is no arguable case of jurisdictional error in this matter. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. Scale costs in this instance would be $2,500. The Minister seeks $2,000. The applicant stated that he would find payment of costs difficult, but the issue for me is whether the Minister's costs were reasonably and properly incurred. I am satisfied that they were. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 6 February 2008
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