SZMDN v Minister for Immigration
[2008] FMCA 1089
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1089 |
| MIGRATION – RRT decision – Indonesian woman of 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), s.426A(1) |
| Applicant: | SZMDN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 924 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 22 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | 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 $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 924 of 2008
| SZMDN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in September 2007, and on 22 October 2007 she applied for a protection visa against return to Indonesia. Her application showed that she was a woman of Chinese ethnicity and Christian religion, and a very brief statement suggested that she had fear of being killed as an ethnic Chinese person. It referred to her grocery shop in Jakarta having been robbed by Indonesians, without indicating when this happened. It also indicated a fear that “the native Indonesian” would repeat their attacks on Chinese shops which occurred in 1998.
A delegate refused the application on 3 December 2007 and his decision was posted on 4 December 2007. The delegate reviewed country information about Indonesia, and thought that there was no real chance that the applicant would face persecution in Jakarta in the reasonably foreseeable future.
The applicant lodged an application for review with the Tribunal on 7 January 2008. Her application did not appoint an authorised recipient for correspondence, but requested that all correspondence should be sent to her at an address in Elizabeth Street, Surry Hills.
The Tribunal posted to that address on 17 January 2008 a letter bearing that date, inviting the applicant to attend a hearing on 20 February 2008. The letter informed the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.
However, there was no attendance at the hearing and no contact was made to the Tribunal, and it had no phone number to contact her on. It decided to proceed under s.426A(1) of the Migration Act 1958 (Cth) to make a decision without taking any further action to allow the applicant to appear before it. In my opinion, it was clearly authorised to follow that procedure.
In its decision handed down on 11 March 2008, the Tribunal affirmed the delegate’s decision. It said that the applicant’s claims were lacking in detail in general and it had not been able to explore them with the applicant. It was not satisfied on the evidence before it that she had a well‑founded fear of persecution within the meaning of the Convention. There is no arguable jurisdictional error shown in its reasoning.
The present application asks the Court to set aside the Tribunal’s decision and to remit the matter to the Tribunal for further hearing. It has been set down for hearing today on whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to get legal advice, after receiving a bundle of relevant documents. However, she has not filed an amended application or any evidence.
Her application does not present any proper ground of judicial review, merely repeating some parts of the original statement attached to her visa application making her refugee claims. The applicant today had no submissions to make to me, but when I invited her to explain her absence from the Tribunal’s hearing she gave me two inconsistent reasons, one being that she was too ill, and the other that she did not receive the Tribunal’s invitation. Whatever might be the reason, the authorities are clear as to the Tribunal’s authority to proceed under s.426A(1) in the uncontested circumstances of this case.
In my opinion, the application raises no arguable case for the relief it claims, and it is appropriate to dismiss it under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 1 August 2008
0
0
0