SZMJB v Minister for Immigration

[2008] FMCA 1186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1186

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss.424A, 426A

First Applicant: SZMJB

Second Applicant: SZMJC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1443 of 2008

Judgment of: Driver FM

Hearing date: 21 August 2008

Delivered at: Sydney

Delivered on: 21 August 2008

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms J Dinihan
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1443 of 2008

SZMJB

First Applicant

SZMJC

Second 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 decision was handed down on 1 May 2008. The Tribunal affirmed a decision of the delegate Minister not to grant the applicants protection visas. The applicants are from Indonesia and made claims of persecution based upon threats from terrorists. The first applicant arrived in Australia on 26 June 1998. He left again on
   5 July 1998. He arrived again, together with the second applicant, on
   12 October 2007. They applied to the Minister's Department for protection visas on 20 November 2007. That application was rejected by a delegate on 11 December 2007. On 15 January 2008 they applied for review before the Tribunal.

2. The Tribunal was unable to make a favourable decision on the papers and invited the applicants to a hearing by letter dated 1 February 2008. The applicants did not attend the hearing to which they were invited. The Tribunal elected to proceed in their absence pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal found that the applicants' claims lacked detail. The Tribunal noted that the applicants had been put on notice in writing that the Tribunal was unable to make a decision in their favour on the material before it, but no further information had been given. Given the lack of detail, the Tribunal was unable to make findings of fact in relation to the claims. The Tribunal concluded that the first applicant was not a person to whom Australia owed protection obligations. No claims were made by or on behalf of the second applicant.

3. These proceedings began with a show cause application filed on 5 June 2008. The applicants continue to rely on that application. It asserts a breach of s.424A of the Migration Act in relation to country information. The application is supported by a short affidavit.

   
   

   I received paragraph 2 as evidence, paragraph 1 as a submission.  I also received as evidence the court book filed on 8 July 2008 and an affidavit by Miriam Mafessanti made on 25 July 2008.

4. There is no substance to the asserted breach of s.424A. The Tribunal did not rely on country information. The Tribunal decision turned on an insufficiency in information. That insufficiency was not information requiring disclosure pursuant to s.424A.

5. I asked the applicants about the circumstances of their non-attendance at the hearing before the Tribunal. The first applicant told me that he was living and working at Katherine in the Northern Territory at the time. He was unable to take time off work for the hearing. He was, however, aware of the hearing invitation. He arranged for a friend to collect mail from his nominated post box in Bardwell Park. I note that the response to the hearing invitation on page 63 of the court book was signed by the first applicant and, according to a fax transmission line at the top of the document, was apparently sent by facsimile to the Tribunal on 19 February 2008 from an address in Liverpool Street, Sydney.

6. The first applicant concedes that he did not tell the Tribunal of any difficulty he may have had in attending the hearing. He said he did not know how to contact the Tribunal. However, that difficulty did not prevent him from accepting the hearing invitation. When the applicants failed to attend, the Tribunal was left with no explanation for their non-attendance. The court book and the affidavit of Ms Mafessanti establish that the hearing invitation was sent in accordance with the Migration Act.

7. The Tribunal was entitled to exercise its discretion to proceed in the absence of the applicants pursuant to s.426A. I see no arguable case of jurisdictional error in this Tribunal decision.

8. I will therefore dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

9. The application having been dismissed, costs should follow the event.  The Minister seeks costs fixed in the sum of $2,000.  The applicants did not wish to be heard on costs.  Scale costs in this instance would be $2,500.  I will order that the applicants pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  25 August 2008