SZLYO & Anor v Minister for Immigration & Anor

[2008] FMCA 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLYO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 691

MIGRATION – RRT decision – South Korean applicant – did not attend 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.425, 426A(1)

Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365, [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036

First Applicant: SZLYO

Second Applicant: SZLYP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 281 of 2008

Judgment of: Smith FM

Hearing date: 19 May 2008

Delivered at: Sydney

Delivered on: 19 May 2008

REPRESENTATION

Counsel for the Applicants: Applicant husband in person

Counsel for the First Respondent: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. 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. 

2. The applicants must pay the first respondent’s costs in the sum of $1,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 281 of 2008

SZLYO

First Applicant

SZLYP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant and his wife came to Australia in 1997 or 2001 (the evidence is unclear), and on 24 August 2006 they applied for protection visas. Only the husband made claims to be a refugee, and I shall refer to him as “the applicant”. He sought protection against return to South Korea. He said that he had been harassed by gangsters who were illegally acting as collecting agents for a creditor who had lent money to his brother. He said:

   They even broke into our house in the middle of night and bashed me … All these things happened by my mistake in becoming a guarantor for my brother’s borrowing money from a private finance company which had closely been connected with gang members and Korean mafia. 

   He claimed that the police “were not actively investigating this matter” after he reported it, and that they were not willing to protect him.

2. No support for these claims, nor greater details, were given to the Department of Immigration nor on appeal to the Refugee Review Tribunal. A delegate of the Minister of Immigration refused the applications on 3 November 2006.

3. An application for review by the Refugee Review Tribunal was lodged on 18 December 2006. It identified the applicant husband as “applicant 1” and his wife as “applicant 2” in section A. It gave a residential address at Auburn for “applicant 1” in section B, and in section C did not appoint an adviser nor authorised recipient for applicant 1. In section D, the applicant husband asked the Tribunal to send all correspondence in connection with the review “to me at my address”, giving the Auburn address. In section F, a declaration was signed by applicant 1. A separate declaration was signed by applicant 2, that is, the wife, which indicated adoption by her of the statement:

   Unless I advise the Tribunal otherwise, I authorise the Tribunal to communicate with Applicant 1 or his or her authorised recipient about this application. 

4. By letter dated 18 January 2007, which has a handwritten note indicating it was posted on that date, the applicant husband was informed that the Tribunal had considered the material in relation to the application, but was unable to make a decision in his favour on the information alone. The letter said: “we now invite you and any persons listed below to come to a hearing of the Tribunal …”. Listed below in the letter was the name of the applicant wife, and the letter told him that he should inform her of the hearing invitation, and that “any reply will be regarded as a joint response unless we are advised otherwise”. The letter enclosed a brochure and drew attention that the Tribunal could make a decision on the case if he did not attend the hearing.

5. No response to that letter was received by the Tribunal, and there was no attendance at the appointed hearing. The Tribunal then proceeded to make a decision without taking any further action. This procedure was, in my opinion, clearly authorised by s.426A(1) of the Migration Act 1958 (Cth).

6. In its decision handed down on 12 April 2007, the Tribunal indicated that it was not satisfied that all the elements for the grant of refugee protection were made out, by reason of the insufficient details provided by the applicants, and was not satisfied that the applicant husband was a person to whom Australia had protection obligations under the Refugee’s Convention. That conclusion is unsurprising on the material before the Tribunal, and indeed it is difficult to see how the Tribunal could have found him to be a refugee under the definition of “refugee” in the Convention on the claims presented to the Department and the Tribunal.

7. The applicants now ask the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. Their application has been set down today for the Court to consider whether it raises an arguable case for the making of these orders. The applicants have been given an opportunity to file an amended application and evidence, after receiving a bundle of relevant documents and a referral for free legal advice.

8. The applicant today presented an amended application explaining one of the grounds in the original application, but has not presented any evidence to the Court explaining his absence from the hearing.

9. The grounds of the original application were:

   1.Not all of the information I submitted to the DIAC and the Tribunal was properly considered. 

   2.I was not invited by the Tribunal to give oral evidence and present arguments at a hearing. 

   3.The Tribunal’s decision is void and null due to its negligence not to investigate my matter fairly. 

10. The argument presented in Ground 1 is unclear, but on any reading of it I can find no arguable substance. The Tribunal clearly considered the information submitted to the Department of Immigration by the applicant, and I can see no arguable basis that it did not do so according to its jurisdictional obligations. It is not the function of the Court itself to consider the merits of the matter.

11. In relation to the ground in Ground 2, the applicant husband was clearly invited to the hearing, and I also consider that the letter of invitation clearly invited his wife also and was properly served on the applicant husband. No particulars of the contention raised in this paragraph are shown, but the applicants’ amended application appears to attempt to give substance to the ground, by particularising a failure to comply with s.425 of the Migration Act because “the Tribunal failed to invite the second applicant to a hearing” (emphasis added).

12. However, I consider that there is no prospect that this ground could succeed if I allowed the matter to come to a final hearing before me. As I have indicated above, the joint application for review clearly authorised the Tribunal to communicate to the applicant husband by letter addressed to the applicant husband, and also appointed him to be the applicant wife’s authorised recipient for such correspondence. I have addressed a similar form of joint application, and have rejected this argument in SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036 at [33]‑[35]. I do not consider that the applicants’ contention has any prospects of success before me.

13. The third ground in the application is unexplained. On well established authority, the Tribunal is not obliged to investigate an inadequately presented protection visa application, but is authorised to proceed under s.426A(1) (cf. Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20], and Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365, [2006] FCAFC 142 at [200]‑[201]). I therefore do not consider that Ground 3 is reasonably arguable.

14. The applicant husband attended today. He told me that the reason why he had not attended the hearing was that he had not properly understood the importance of the contents of the letter that he received. However, even if there were properly adduced evidence explaining these circumstances, they could not, in my opinion, provide an arguable ground for setting aside the Tribunal’s decision.

15. In my opinion, the application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss it today under r.44.12(1)(a).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  2 June 2008