SZMFO v Minister for Immigration
[2008] FMCA 1137
•11 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1137 |
| 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), ss.425, 425A, 426A |
| Applicant: | SZMFO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1153 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 11 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms Z McDonald DLA Phillips Fox |
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 $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1153 of 2008
| SZMFO |
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 8 April 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 arrived in Australia on 25 October 2007. He applied to the Minister's Department for a protection visa on 3 December 2007. The Minister's delegate refused that application 20 December 2007. On 21 January 2008 the applicant applied for review before the Tribunal.
The applicant's protection visa claims were based on alleged threats made against him by some strangers. The Tribunal was not satisfied that it could make a favourable decision on the basis of the applicant's claims on the papers and on 8 February 2008 the applicant was invited to attend a hearing. The letter was sent by registered post (court book, page 47).
The applicant responded to the hearing invitation stating that he wished to attend (court book, page 49). At the scheduled time and date the applicant failed to attend (court book, page 50). After considering the circumstances the Tribunal elected to exercise its discretion pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) and proceeded to make a decision in the applicant's absence (court book, page 59). The Tribunal found that it had insufficient information to enable it to make a favourable decision (court book, page 60).
These proceedings began with a show cause application filed on 7 May 2008. The applicant continues to rely upon that application. He has not taken up an opportunity I afforded to him to file and serve an amended application with particulars. The application contains an unparticularised allegation that the Tribunal decision is not a privative clause decision and that the decision was made in excess of the Tribunal's jurisdiction. In the absence of particulars, the allegation is meaningless.
I received as evidence the court book and the applicant's brief affidavit filed on 7 May 2008. The applicant states in the affidavit that he has no intention to go back to Indonesia. That is uncontroversial. However, the applicant was unable to expand upon the ground in his application. I asked him about this failure to attend the Tribunal hearing. He said that he was sick and stressed at the time. However, he has provided no medical evidence of any problem at that time and neither is there any evidence of any attempt by him to inform the Tribunal of a difficulty. I note in that regard that the hearing was scheduled to be on 17 March 2008 and the Tribunal decision was not handed down until 8 April 2008. There was ample time for the applicant to alert the Tribunal of a health or stress problem should he have wished to.
I am satisfied on the basis of the material in the court book that the Tribunal met its obligations to invite the applicant to a hearing pursuant to ss.425 and 425A of the Migration Act. No arguable case of jurisdictional error is apparent to me from my reading of the material.
Accordingly, I dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $1,800. The 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 $1,800.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 August 2008
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