SZLQR v Minister for Immigration
[2008] FMCA 227
•19 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 227 |
| MIGRATION – RRT decision – Indian applicant claiming political persecution – 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), s.425 |
| Applicant: | SZLQR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3579 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 19 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms L Buchanan |
| 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 $2,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3579 of 2007
| SZLQR |
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 applied for a protection visa on 9 May 2007. A narrative attached to his application claimed that he feared to return to India, because of harassment he had received in his village as a result of his political activities on behalf of the Lok Dal political party. He had been that party’s representative for five villages, and had actively assisted the party in elections in February 2005, which had been won by the Congress Party. In the course of the election there was an incident, following which he was taken to the police station, beaten and detained, and land which had been distributed to him was taken over by his political opponents. When he sought access to the land, he was harassed by police, and he received a threatening letter telling him that he would be killed if he did not leave the village.
No corroborative support for this history was provided to the Department of Immigration, nor after the applicant appealed to the Tribunal. A delegate refused the application on 8 June 2007, and that decision was affirmed by the Tribunal in a decision handed down on 23 October 2007.
Before making its decision the Tribunal sent the applicant a letter dated 9 August 2007. This told the applicant that it was unable to make a favourable decision on the material forwarded by the Department, and invited him to attend a hearing on 27 September 2007. The letter told the applicant that:
The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if there is a difficulty in the hearing proceeding on this date. Please note that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.
The letter was properly addressed, and on the evidence before me fully complied with the requirements of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The applicant, however, did not attend the hearing, and made no contact with the Tribunal before it handed down its decision.
In its decision, the Tribunal said that it was “not prepared to accept the applicant’s claims without further substantiation”, and was therefore not satisfied on the evidence before it that the applicant had a well‑founded view of persecution within the meaning of the Convention.
The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to re‑consider his refugee claims. His 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 file an amended application and evidence, after receiving a referral for free legal advice and a bundle of relevant documents. However, he has not filed any additional documents, and relies on his original application and affidavit.
This contained the grounds:
1.The Tribunal failed to carry out its review function and to exercise its jurisdiction.
2.The Tribunal exceeded [its] jurisdictional failed to exercise its jurisdiction or denied my procedural fairness.
3.The Tribunal exceeded its jurisdiction by failing to take into consider the threat of my life and / or liberty.
The applicant’s affidavit provides no explanation of these grounds, nor any explanation for the applicant’s absence at the hearing.
The grounds lack particulars explaining any argument supporting a finding of jurisdictional error, and I am unable to see any arguable basis for arriving at that conclusion. The Tribunal undoubtedly identified, and properly addressed, the applicant’s refugee claims.
The applicant attended today, and said that he had not attended the hearing because he was sick with a sprained ankle, for which he did not seek medical attention. He conceded that he had not attempted to contact the Tribunal. No evidence has been presented to the Court which, in my opinion, could support any argument that the Tribunal failed to comply with its required procedures under the Migration Act, in particular under s.425 of the Migration Act.
In my opinion, the application has not raised an arguable case for the relief it claims, and it is appropriate to dismiss the application under r.44.12(1)(a).
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 28 February 2008
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