SZLQW v Minister for Immigration
[2008] FMCA 782
•6 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 782 |
| MIGRATION – Where Tribunal invited applicant to hearing – where applicant did not attend Tribunal hearing – where Tribunal unable to reach a state of satisfaction regarding the applicant’s claims. |
| Migration Act 1958 (Cth), s.426 |
| SZIFB v Minister for Immigration [2007] FCA 1727 SZGZQ v Minister for Immigration [2007] FCA 62 |
| Applicant: | SZLQW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3591 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 6 June 2008 |
| Date of Last Submission: | 6 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3591 of 2007
| SZLQW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Indonesia. He arrived in Australia on 1 May 2007. On 23 May 2007 he applied to the Department of Immigration and Citizenship for a Protection (class XA) visa. On 20 June 2007 his application was refused by a delegate. On 17 July 2007 the applicant applied for a review of the delegate's decision from the Refugee Review Tribunal.
On 3 August 2007 the Tribunal wrote to the applicant at the address given by him in his application [CB45] stating that the Tribunal had considered the material before it but was unable to make a favourable decision upon that information alone. The Tribunal offered the applicant the opportunity to appear before it at a hearing on 11 September 2007.
I have read an affidavit of Vanessa Ching Vazquez sworn on 19 December 2007 which exhibited a registered post log from the Tribunal. I am satisfied that the invitation to hearing was sent within three days of the date of the letter as required.
On 21 August 2007 the applicant responded to the hearing invitation advising the Tribunal that he wished to come to the hearing [CB51]. The applicant did not attend. The Tribunal proceeded to deal with the matter pursuant to the provisions of s.426A of the Migration Act1958 (Cth) (“the Act”). I am satisfied that the requirements relating to the invitation were fulfilled, and in the circumstances of the applicant's non-attendance the Tribunal was entitled to proceed in that manner. On 5 October 2007 the Tribunal determined to affirm the decision under review, and handed that decision down on 25 October 2007.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations are found in his protection visa application at [CB21]. He claimed to be a businessman owning a grocery business supplying groceries to the government. He says that one day a government official asked him to join with that official and other persons “to do illegal things. They wanted to corrupt the government and steal money.” The applicant said that he knew this was not right and he refused. He says that as a result he was forced out of business. He says he reported the matter to the police but they did nothing. The officials continued to cause trouble for him and his businesses burned down. He ran away but he was chased. He went into hiding for a few days before obtaining the necessary documents to travel to Australia.
This was the only evidence before the Tribunal. As the Tribunal says at [CB61]:
The Tribunal finds that the applicant's claims are very brief, and they lack crucial details. He has provided no details of the nature of his business’s involvement in supplying groceries to the government. He stated that a government official suggested he become involved in corrupt activities, but he did not provide details of those activities. He gave no details of how the government official caused him to go out of business, or the circumstances in which his business burned down. He provided no details of the circumstances in which he reported his problems to the police or the circumstances of their claimed failure to take action
...
Given the scant details provided by the applicant regarding his claims the Tribunal is not satisfied on the evidence before it that there is a real chance that the applicant will be persecuted for a Convention reason if he were to return to Indonesia. The Tribunal is therefore not satisfied that the applicant has a well founded fear of persecution within the meaning of the Convention.
It is the responsibility of the applicant to make out his case. As Jacobsen J said in SZIFB v Minister for Immigration [2007] FCA 1727 at [10]:
“As the learned Federal Magistrate observed, the Tribunal was unable, upon the material before it, to reach the necessary state of satisfaction. It was therefore bound to refuse to grant the visa. The RRT set out its reasons and no error is disclosed in this. As the High Court has recently observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the Court has said on a number of occasions that the proceedings in the Tribunal are inquisitorial and it is for the applicant for a protection visa to establish the claims that are made. This answers the submission put to me this morning by the appellant that the RRT did not give her enough information to inform her what material she should put forward to support her claim.”
The Tribunal must be affirmatively satisfied of the claims made by an applicant: see SZGZQ v Minister for Immigration [2007] FCA 62 per Greenwood J at [13].
In this particular case the Tribunal had made it clear in its letter that it could not be satisfied of the matters necessary from the information that the applicant had provided. That was why it asked him to a hearing. The applicant's failure to attend the hearing could not possibly assist him because the state of satisfaction would not be enhanced. Before me today the applicant said that he was not well, but he has produced no evidence about this, nor does he say why he did not telephone the Tribunal and seek an adjournment. I am afraid that in those circumstances the applicant appears to have lost his chance for a merits review based upon his oral evidence.
The Tribunal has not fallen into jurisdictional error in failing to come to a state of satisfaction which would have allowed it to grant the applicant a visa. The application must be dismissed. The applicant must pay the first respondent's costs which I assess in the sum of $2,500.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 13 June 2008
3
1