SZLRN v Minister for Immigration
[2008] FMCA 333
•26 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 333 |
| MIGRATION – RRT decision – Indonesian Chinese woman fearing ethnic violence – 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.424A(1), 426A(1)
| Applicant: | SZLRN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3637 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 26 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms M Palmer |
| Solicitors for the Respondents: | Sparke Helmore |
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 |
SYG3637 of 2007
| SZLRN |
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 April 2007, and on 11 May 2007 she lodged an application for a protection visa. A very brief statement attached to the application explained why she sought protection against return to her country of nationality, Indonesia. She said that she was an ethnic Chinese person, and “if I go back to Indonesia, I might be raped or even be killed by the local Indonesian”. She referred to having been “in a dangerous position as there is a possibility that I would be raped and even killed. I was ever targeted by the local Indonesian. My house was ever being robbed by the locals”. These events were suggested to have occurred “during May riot”. However, no details of these claims nor corroborative evidence was ever provided to the Department or the Refugee Review Tribunal.
A delegate refused the visa application on 24 July 2007. On appeal, the applicant was not assisted by an agent, and did not give the Tribunal any telephone contact details. She requested that correspondence be sent to her at an address in Elizabeth Street, Surry Hills.
The Tribunal posted to the applicant at that address a letter dated 11 September 2007, telling her that it was unable to make a favourable decision on the information on the file. It invited her to attend a hearing on 10 October 2007. The Tribunal received no response from the applicant to its letter, and there was no attendance at the hearing and no contact to it by or on behalf of the applicant. I can see no arguable ground that the Tribunal was not then entitled to proceed to make a decision under s.426A(1) of the Migration Act 1958 (Cth).
The Tribunal handed down a decision affirming the delegate’s decision on 30 October 2007. It thought that the applicant’s reference to the “May riot” might have been to the social upheaval in Jakarta and some other parts of Indonesia in May 1998. However, it held that the applicant had provided insufficient detailed information to satisfy the Tribunal that she faced a real chance of Convention‑related persecution in Indonesia. It was not satisfied that she was a refugee.
The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider her refugee claims. Her application has been set down today to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to amend her application and file evidence, after receiving a bundle of relevant documents and a referral for free legal advice. She has not filed any further documents, and in particular has not explained the reasons for her absence from the Tribunal’s hearing.
Her original application contains three grounds:
1.The Tribunal is affected by jurisdictional error in that it did not comply with its obligation to put adverse information relied upon as part of the reason for the decision to the appellant to comment.
2.The appellant was denied procedural fairness in connection with making of the decision to affirm the decision made by the first respondent.
3.The Tribunal failed to make the correct decision.
The first ground is not reasonably arguable, since clearly the Tribunal did not rely upon any adverse information about the applicant when arriving at its decision. It was unarguably under no obligations under s.424A(1).
The second ground lacks any particulars, and I am unable to see any arguable merit in it. The provisions of s.426A(1) clearly authorised the Tribunal to proceed in the absence of the applicant at the hearing to which she had been invited.
The third ground does not identify any jurisdictional error, but invites the Court to consider the merits of the refugee claims. However, it is not the function of the Court to do this.
The applicant attended today but had no submissions to make to me.
I am not satisfied that her application raises an arguable case, and I consider it 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: 19 March 2008
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