SZMGG v Minister for Immigration
[2008] FMCA 1241
•1 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1241 |
| MIGRATION – Review of RRT hearing – where applicant did not attend hearing before the Tribunal – where Tribunal not satisfied the applicant’s claims were Convention-related. |
| Migration Act 1958, ss.65, 426A |
| Applicant: | SZMGG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1220 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 1 September 2008 |
| Date of Last Submission: | 1 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1220 of 2008
| SZMGG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Malaysia. He arrived in Australia in October 2007 and on 20 November 2007 applied for a protection (class XA) visa. On 11 December 2007 a delegate of the Minister declined to grant him a protection visa and on 9 January 2008 the applicant applied for review of that decision by the Refugee Review Tribunal.
On 24 January 2008 the Tribunal wrote to the applicant advising him that it had considered the material before it but was unable to make a favourable decision on that information alone and invited him to a hearing on 3 March 2008. The applicant responded to that hearing invitation indicating that he would like to come, but he did not attend and therefore the Tribunal determined that it should proceed with the review pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”). On 17 March 2008 the Tribunal determined to affirm the decision not to grant a protection visa and that decision was handed down on 8 April 2008.
The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was that he was a shop owner of Chinese ethnicity living in Malaysia. In July 2007 some local bullies had come to his shop, asked for protection money and wanted to use his shop to sell illegal things. The applicant and his sister, who was a co-owner of the shop with him, refused and they were threatened by the local bullies. Luckily, their staff who had witnessed the incident called the police and the local bullies left. A few days later the shop was damaged and some products were ruined. He and his sister reported this to the police but the police merely filed a report and took no further action. The applicant said he feared that if he returned to Malaysia the bullies would take revenge on him and his sister by chasing them and killing them because they had not obeyed orders and reported them to the police. He said that he did not believe that the authorities could protect him because they had no power, or maybe they were backing the bullies.
The Tribunal considered the applicant's claims, noting [CB65]:
“His claims are brief and lacking in detail. It is unclear, for example, what illegal things the ‘local bullies’ wanted him to sell in his shop or why the applicant believed that the police would not protect him although he claims that the police came when his staff called them and that the ‘local bullies’ left. It is likewise unclear on what basis he claims to believe that the police are in fact backing the ‘local bullies’. I am unable to be satisfied on the evidence before me that the applicant was asked for protection money or asked to sell some illegal items in his shop by ‘local bullies’ as he claims, nor that his shop was damaged and some products ruined as he claims, nor that the applicant genuinely fears that the ‘local bullies’ will always damage his shop or chase him, harm him or kill him because he did not obey their orders or because he reported them to the police.
Moreover I am likewise unable to be satisfied on the evidence before me that one or more of the five Convention reasons is the essential and significant reason for the persecution which the applicant claims to fear from ‘local bullies’. There is nothing in the applicant's account of what happened to suggest that the ‘local bullies’ wished to take revenge on him for one or more of the five Convention reasons ... nor does the applicant's account suggest that the failure of the Malaysian authorities to protect him was due to any systematic discriminatory implementation of the law for a Convention reason.”
The conclusion that the Tribunal came to is unsurprising. There is an obligation on the applicant to satisfy the Tribunal of the claims which he makes, and this includes an obligation to satisfy the Tribunal that those claims are Convention based. A failure to attend a hearing makes it very difficult for a Tribunal that had already expressed a view which would indicate a lack of satisfaction to meet that test without further input from an applicant.
The application filed with this court on 14 May 2008 gives two grounds. The first is that the Tribunal did not adequately take into consideration “the current situation in relation to my claims for a protection visa”. If by this the applicant means the current political situation in Malaysia, that was never a matter in issue. If it related to some other matter then the applicant should have explained to me what the situation he referred to was, but when he appeared he said he did not know why he believed the Tribunal had erred in law in the way in which it reached its decision.
The second ground of application was that the Tribunal did not comply with its obligation to put adverse information. As I have indicated the Tribunal did not come to its decision on the basis of any adverse information. It came to that decision on the basis that the applicant had not satisfied it as required by s.65 of the Act. There was no relevant adverse information to put.
This application appears to me to be without merit. I dismiss it. I order that the applicant pay the first respondent's costs which are assessed in the sum of $2200.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 3 September 2008
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