SZLRZ v Minister for Immigration
[2008] FMCA 388
•18 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 388 |
| MIGRATION – RRT decision – Indonesian applicant fearing persecution due to 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) |
| Applicant: | SZLRZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3702 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 18 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms N Johnson |
| 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 |
SYG 3702 of 2007
| SZLRZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia from Indonesia in April 2007. On 11 May 2007 she applied for a protection visa. A brief statement attached to the application claimed that “My house and shops in (a city) had been looted and burnt down to ashes”. It also said that the applicant was afraid to go back “as the possibility of being killed by the mob is high”. She referred to her Chinese ethnicity, and said that there had been a “very reliable rumour that before 17 August 2008 (the Indonesians' Independence Day), there would be no more Chinese left in the country”. No details of the looting of her house were given, nor any supporting evidence for her fear of “ethnic cleansing”.
A delegate refused the application on 23 July 2007. His statement of reasons referred to the vague and unsubstantiated claims made by the applicant, and to the fact that country information did not support her claim of ethnic Chinese being at risk.
The applicant appealed to the Refugee Review Tribunal. In her application, she asked the Tribunal to send correspondence about her application to her at an address in Elizabeth Street, Surry Hills. She gave no telephone or other contact details.
On 12 September 2007, the Tribunal posted to that address a letter inviting the applicant to appear before the Tribunal on 16 October 2007. The letter informed the applicant that the Tribunal was unable to make a favourable decision on the information which was before it at that time. However, the applicant did not appear at the appointed hearing, and made no contact with the Tribunal. It proceeded to make a decision, as it was empowered under s.426A(1) of the Migration Act. I can see no argument available to the applicant to show that the Tribunal did not have that power, nor that it exercised the power impermissibly.
In its statement of reasons handed down on 6 November 2007, the Tribunal affirmed the delegate's decision. The Tribunal referred to the absence of supporting evidence from the applicant, and said it was not satisfied on the evidence that the applicant faced a real chance of Convention-related persecution in Indonesia, nor that her claimed fear of such persecution was well-founded. I can see no arguable jurisdictional error affecting that conclusion.
The applicant's application to this Court seeks the setting aside of the Tribunal's decision and an order that it reconsider her refugee claims. It has been set down today to consider whether it raises an arguable case for the making of those orders. The applicant has been given an opportunity to amend her application and file additional evidence, after receiving a bundle of relevant documents and a referral for free legal advice. She has not, however, filed any additional documents, and relies on her original application.
This has the following three grounds:
1.I would face a risk of being killed if I return to Indonesia.
2.The Tribunal member should not refuse my claims for a protection visa.
3.The Tribunal failed to consider the whole of my case.
The first two grounds invite the Court to consider whether the applicant is a refugee, and to assess the merits of the matter before the Tribunal for itself. However, this is not the function of the Court in an application such as the present. The Court can only intervene if it is satisfied that jurisdictional error affected the Tribunal's proceedings or decision.
The third ground does not give any details of an argument showing that the Tribunal failed to consider the applicant's case. Given the brevity of the claims presented by the applicant to be a refugee, and the fact that the Tribunal fully identified those claims, I can see no arguable substance in this ground.
The applicant attended today, but had nothing to say to me, including as to why she missed the Tribunal's hearing.
I am not satisfied that her application raises an arguable case for the relief it claims, and I consider it appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 31 March 2008
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