SZMDM v Minister for Immigration
[2008] FMCA 1012
•21 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1012 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Indonesia – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| Applicant: | SZMDM |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 923 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 21 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr P Snell Sparke Helmore |
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 in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 923 of 2008
| SZMDM |
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 11 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Indonesia and had made claims of ethnic persecution arising from an alleged robbery. Background facts relating to the applicant's claims and the Tribunal decision on them are conveniently set out in written submissions filed on behalf of the Minister on 11 July 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 7 of those written submissions:
The applicant’s written claims were contained in a statement attached to her protection visa application: court book (“CB”) 26. She provided no further written claims to the Department or to the Tribunal and did not attend the Tribunal hearing.
The applicant, a citizen of Indonesia claimed to fear persecution on the basis of her Chinese ethnicity. She claimed that on 15 June 1998 she was riding a motorcycle with her parents when they were robbed at gun point. The applicant also claimed that from the May 1998 riot “the law was no longer in effect” and that she is afraid to return to Indonesia because of the possibility she will be killed: CB 26.
The delegate refused the applicant a protection visa because while the delegate accepted, on the basis of independent country information, that there was still some discrimination, there was no evidence of persecution of Chinese Indonesians: CB 37.4. The delegate further noted that while the applicant may have a subjective fear of persecution that arose from the violence in 1998, the changes in Indonesia since President Soeharto was deposed indicate that there is no real chance the applicant will suffer persecution in the future: CB 38.6.
Tribunal proceedings
On 7 January 2008, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision: CB 42-43. By a letter dated 17 January 2008, the Tribunal invited the applicant to attend a hearing on 20 February 2008 to give oral evidence and present arguments in support of her case: CB 48-49.
The applicant did not reply to that invitation and failed to attend the hearing on 20 February 2008: CB 50-51. The Tribunal proceeded to make a decision in accordance with s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) without taking any further action to allow or enable the applicant to appear before it: CB 58.5.
The Tribunal found that the applicant’s claims were “lacking in detail and general” (CB 59.5) and that the “information that the applicant has submitted does not provide the necessary detail for the Tribunal to be satisfied as to the veracity of her claims or that she had a well founded fear of persecution”: CB 59.6. As a result the Tribunal could not be satisfied that the applicant had suffered any harm amounting to persecution or that she had a well-founded fear of persecution within the meaning of the Convention: CB 58.8. The Tribunal’s decision and approach reveals no error.
These proceedings began with a show cause application filed on 16 April 2008. In that application the applicant asserts a lack of procedural fairness and a failure to consider the applicant's claim. The application is supported by a short affidavit, which I received. I also have before me the affidavit of Peter Snell made on 21 May 2008, the court book filed on 27 May 2008 and the Minister's response filed on 16 May 2008.
I reject the allegation of a lack of procedural fairness in this case.
The obligation on the Tribunal was to invite the applicant to a hearing once it had determined that it could not make a favourable decision on the papers. That was done on 17 January 2008: CB 48 and 49.
The invitation was sent to the address nominated by the applicant in her review application to the Tribunal. I accept from the affidavit of Mr Snell that the hearing invitation was dispatched on the same date that the letter bore. The applicant failed to attend the hearing to which she was invited. It does not appear that the hearing invitation was returned.
The Tribunal records in its reasons at CB 58 that no response was received, that the applicant had no advisor and that she had not provided the Tribunal with any telephone number. The Tribunal notes that it had no means of contacting the applicant, apart from writing to her at the address she had nominated. The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. In the circumstances, the Tribunal was entitled to and did proceed in her absence pursuant to s.426A of the Migration Act.
Neither is there any substance to the second ground in the application. The Tribunal faithfully recorded the applicant's claims and considered them. The Tribunal found that the applicant's claims were lacking in detail in general. The Tribunal noted that it was unable to explore with the applicant any details of those claims. Accordingly, the Tribunal was unable to be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.
I find that there is no arguable case of jurisdictional error in this matter. I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
Costs should follow the event in this matter. The Minister's costs exceed scale costs but the Minister seeks the application of the scale. The applicant said she would be unable to pay the costs but, as has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making the costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 July 2008
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