SZMAL v Minister for Immigration
[2008] FMCA 605
•12 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 605 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Indonesia – applicant failing to attend a hearing before the Tribunal – summary dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| Applicant: | SZMAL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 570 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 12 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms B Griffin Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 570 of 2008
| SZMAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 12 February 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant arrived in Australia from Indonesia on 21 August 2007. He applied for a protection visa on 13 September 2007. The Minister's delegate refused that application on 23 October 2007, and the applicant applied to the Tribunal for a review of that decision on 23 November 2007.
The Tribunal was unable to make a favourable decision on the papers alone and invited the applicant to attend a hearing. The applicant responded that he wished to attend the hearing, but on the nominated day he failed to appear. The Tribunal proceeded in his absence pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal found that it had insufficient material to enable it to make a decision favourable to the applicant.
These proceedings began with a show cause application filed on 10 March 2008. The applicant continues to rely on that application. The application is supported by an affidavit annexing the Tribunal decision. In that affidavit the applicant states that he does not want to go back to Indonesia. That is not disputed. I also have before me the book of relevant documents filed on 18 April 2008.
On Friday 9 May 2008, Mr Nair, who had apparently been appointed panel advisor for the applicant under the Minister's Panel Advice Scheme, sent a facsimile to the court registry stating that he had been unable to contact the applicant in order to provide advice under that scheme.
The applicant attended the show cause hearing today. I explained to the applicant the difficulties I had with his show cause application in that the asserted jurisdictional errors were so broad as to be meaningless in the absence of particulars. I drew the applicant's attention to the fact that he failed to attend the Tribunal hearing to which he was invited and invited oral submissions from him, but apart from inviting me to review the Tribunal decision, the applicant had nothing to say.
There is no arguable case of jurisdictional error in relation to this Tribunal decision. The book of relevant documents establishes that on 11 December 2007 the applicant was properly invited to attend a hearing before the Tribunal (court book, pages 44 and 45). The applicant responded on 27 December 2007 that he wished to attend (court book, page 56). However, at the appointed time he failed to appear (court book, pages 48 and 57). The Tribunal records in its decision that it checked whether there was any telephone number on which the applicant could be contacted, but none was found. Having satisfied itself that the discretion to proceed in the applicant's absence pursuant to s.426A of the Migration Act was enlivened, the Tribunal proceeded in the applicant's absence. I see no error in the Tribunal's approach.
The Tribunal was left in the same position as it had been when the applicant was invited to a hearing. There was simply insufficient material before the Tribunal to permit it to make a decision in his favour. The failure of the applicant to attend the hearing to which he was invited rendered the outcome inevitable.
I find that there is no arguable case of jurisdictional error in this matter.
Accordingly, I dismiss the application pursuant to rule 44.12 (1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the amount of $900. Scale costs in this instance would be $2,500. The applicant queried whether the costs sought could be reduced but I am satisfied that the amount sought is a modest claim when considered on a party/party basis.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $900.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 May 2008
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