SZMES v Minister for Immigration

[2008] FMCA 1066

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMES v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1066

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), ss.425, 425A, 426A, 441A

Minister for Immigration v VSAF of 2003 and Ors [2005] FCAFC 73

NADK of 2002 v Minister for Immigration [2002] FCAFC 184
NALQ vMinister for Immigration [2004] FCAFC 121
NASF vMinister for Immigration [2004] FCAFC 162
VNAA vMinister for Immigration (2004) 136 FCR 407; [2004] FCAFC 134

Applicant: SZMES

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1034 of 2008

Judgment of: Driver FM

Hearing date: 28 July 2008

Delivered at: Sydney

Delivered on: 28 July 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

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 $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1034 of 2008

SZMES

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 Tribunal decision was handed down on 18 March 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant's protection visa claims and the Tribunal decision on them are dealt with in the Minister's written submissions filed on 30 June 2008.  I adopt as background for the purposes of this judgment paragraphs 2 through to 4 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 her Tribunal hearing.

   The applicant, a citizen of Indonesia, claimed to fear persecution as a result of her political opinion. The applicant claimed that she supported the Soeharto Government and when they were no longer in power her business suffered badly. The applicant stated that she did not like the new government and made her opinion known. As a result the applicant claimed that police came to her shop and she was detained for two weeks.

   The delegate refused the applicant a protection visa on the basis that there was no evidence that the applicant’s criticism of the current Indonesian President was made in public and no indication that her criticism was published by the press. Further, the delegate considered that she did not have a high political profile in Indonesia and as a result did not accept that she would be persecuted should she return to Indonesia: CB 33.

2. The applicant relies upon her show cause application filed on 23 April 2008. That application asserts that the Tribunal decision was an improper exercise of the power conferred by the Migration Act 1958 (Cth) (“the Migration Act”) and a denial of procedural fairness. No particulars were provided. In directions made by me on 4 June 2008 I gave the applicant the opportunity to file and serve an amended application with particulars. She has not taken up that opportunity. The application is supported by a very brief affidavit which simply asserts that the claims in the application are true and correct. I received that as a submission. I received as evidence an affidavit by Nicola Johnson made on 3 June 2008. I also received as evidence the court book filed on 3 June 2008.

3. I gave the applicant the opportunity to make oral submissions at the hearing today but she did not wish to make any.  It is apparent from the court book that the Tribunal decision was based upon an insufficiency of information in support of the protection visa.  The applicant was invited to attend a hearing before the Tribunal by letter dated 21 December 2007: CB 43 to 44.  The applicant did not reply and did not attend the hearing to which she was invited.  It does not appear that the hearing invitation was returned to the Tribunal. 

4. The Tribunal deals with the circumstances in its decision in the first paragraph under the heading, "Claims and Evidence": CB 54:

   In accordance with section 418 of the Act, the Tribunal was given the Department’s file CLF2007/158716 relating to the applicant’s application for a protection visa.  By letter dated 21 December 2007 and posted to the applicant at the last address for service provided to the Tribunal by the applicant in connection with the review in accordance with section 441A of the act the applicant was notified that the Tribunal was unable to make a decision in her favour on the material before it and that accordingly she was invited to come to a hearing of the Tribunal to give oral evidence and present arguments in support of her claims.  A hearing was scheduled for 4 February 2008.  The applicant was advised that, if she failed to attend the scheduled hearing and did not contact the Tribunal to seek a postponement of the hearing the Tribunal might make a decision on her case without further notice.  The applicant did not attend the scheduled hearing nor did she contact the Tribunal to seek a postponement of the hearing.  In the circumstances I am satisfied that the Tribunal has discharged its obligation to give the applicant an opportunity to appear before it to give evidence.  I have therefore proceeded to make a decision on the basis of the material already before me.  The applicant was unrepresented.

5. The applicant was warned in the hearing invitation that the Tribunal was unable to make a favourable decision on the information that the applicant had submitted to that point. The Tribunal received nothing further. In the circumstances, the unfavourable Tribunal decision was almost inevitable.

6. I accept from the court book and the affidavit of Ms Johnson that the Tribunal met its obligations pursuant to ss.425 and 425A of the Migration Act to invite the applicant to a hearing. I adopt in that regard paragraphs 10 and 11 of the Minister's written submissions:

   Further, the second ground cannot be established in circumstances where the applicant failed to attend the hearing in the face of a letter notifying her that the Tribunal was unable to make a favourable decision on the material before it. The authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries.[1] Relevantly, the hearing invitation sent by the Tribunal to the applicant and dated 21 December 2007 (at CB 43-44):

   (a)invited the applicant to appear before it to give evidence (s.425); 

   (b)gave the applicant notice of the specified date, time and place at which the applicant was scheduled to appear;

   (c)was given to the applicant by one of the means specified in s.441A - namely, s.441A(4) because it was dispatched within 3 working days by prepaid post to the last address for service nominated by the applicant[2];

   (d)provided a period of notice[3] to the applicant that was at least the prescribed period of 14 days provided for by reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and

   (e)contained a statement to the effect of s.426A (regarding the options available to the Tribunal if the applicant failed to appear before it).

   Accordingly, the invitation complied with the statutory requirements contained in sections 425(1) and 425A of the Act and reg. 4.35D of the Regulations. As the applicant did not attend the scheduled hearing, the Tribunal was entitled to proceed as it did without taking any further action to enable the applicant to appear before it.

   [1] See: NADK of 2002 v Minister for Immigration [2002] FCAFC 184, NALQ vMinister for Immigration [2004] FCAFC 121, VNAA vMinister for Immigration (2004) 136 FCR 407; [2004] FCAFC 134, NASF vMinister for Immigration [2004] FCAFC 162, Minister for Immigration v VSAF of 2003 and Ors [2005] FCAFC 73

   [2] See Affidavit of Nicola Johnson sworn 3 June 2008.

   [3] Regulation 4.35D provides for the purposes of s.425A(3) a prescribed period of fourteen days between the date that notification of the hearing date was deemed to have been received by the applicant and the date of the scheduled hearing.

7. I reject the grounds of review contained in the application. No arguable case of jurisdictional error is apparent to me from my own reading of the available material. Accordingly, I dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

8. Costs should follow the event in this case.  The Minister seeks an award of costs fixed in the amount of $2,300.  Scale costs would be $2,500.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $2,300.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  29 July 2008