SZMCX v Minister for Immigration

[2008] FMCA 932

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 932

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.426A

Applicant: SZMCX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 822 of 2008

Judgment of: Driver FM

Hearing date: 7 July 2008

Delivered at: Sydney

Delivered on: 7 July 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Z McDonald
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 822 of 2008

SZMCX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 28 February 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from Indonesia. He arrived in this country on 21 August 2007 and applied for a protection visa on 14 September 2007. A delegate of the Minister refused that application on 2 November 2007. On 30 November 2007 the applicant sought review by the Tribunal of the delegate's decision. On 21 December 2007 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 5 February 2008. The applicant was also advised that if he did not attend that hearing and a postponement was not granted, the Tribunal could make a decision in his case without further notice. The applicant responded to the hearing invitation by stating that he wished to attend. However, he did not attend the hearing on 5 February 2008. According to the court book, which I received as evidence, the Tribunal received no explanation for that non-attendance[1]. The Tribunal elected to proceed in the applicant's absence pursuant to s.426A of the Migration Act 1958 (Cth). The Tribunal found that the applicant had made a series of unsubstantiated and general assertions relating to his problems with Indonesian tax officers but in the absence of more details the Tribunal was unable to make a favourable decision[2].

   [1] court book, page 63

   [2] court book, pages 64-65

3. These proceedings began with a show cause application filed on 7 April 2008.  The grounds in that application are:

   1.The Refugee Review Tribunal failed to consider that I was terrorized by tax officers who asked me to pay huge sum of money which I was not liable, and those tax officers were very authoritative and terrorizing.

   2.The Refugee Review Tribunal did not fully consider that I was very frightened so my parents asked me to go overseas.

   3.I believe that I satisfy the criterion for a protection visa.

4. The applicant seeks orders that his protection visa application be reconsidered and that he meets the refugee criteria.  The latter order sought is clearly beyond the power of this Court to grant.  The application is supported by a short affidavit which I received.  The Minister filed a response on 11 April 2008 seeking the dismissal of the application.  As already noted, I also have before me the court book filed on 9 May 2008. 

5. I invited the applicant to make oral submissions in support of his application.  He told me that he disagrees with the Tribunal decision and asserts that there are additional documents in Indonesia that would support his claims to be a refugee.  He says that he has a friend who has access to these documents who is in Japan and will not return until March 2009.  He sought an adjournment of this hearing until after that time.  I declined that request on the basis that the additional documents, if they exist, would clearly be documents which had been unavailable to the Tribunal and would not assist me in determining whether there is an arguable case of jurisdictional error by the Tribunal. 

6. The grounds in the application are a simple attack on the merits of the Tribunal decision.  The applicant was properly invited to attend a hearing before the Tribunal.  He plainly received the hearing invitation because he responded to it, saying that he wished to attend.  However, for some unexplained reason, he did not attend.  The Tribunal was thus left in the same position as it was in when the applicant was invited to a hearing.  The Tribunal had insufficient material before it to enable it to make a favourable decision. 

7. No arguable case of jurisdictional error is disclosed in the application and neither is any arguable case of jurisdictional error apparent to me from my own reading of the material.

8. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

9. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $1,700.  Scale costs in this instance would be $2,500.  The applicant did not wish to be heard on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,700.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  8 July 2008