SZMKE v Minister for Immigration
[2008] FMCA 1518
•27 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1518 |
| MIGRATION – Review of RRT hearing – where applicant did not attend hearing – Tribunal unable to be satisfied that applicant had a well-founded fear of persecution. |
| Migration Act 1958 (Cth) s.65 |
| Applicant: | SZMKE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1528 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 October 2008 |
| Date of Last Submission: | 27 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1528 of 2008
| SZMKE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter arrived in Australia on 25 October 2007. On 5 December 2007 he applied to the Department of Immigration & Citizenship for a protection (class XA) visa. On 28 December 2007 a delegate of the Minister refused to grant a protection visa. On 29 January 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal.
On 11 February 2008 the Tribunal wrote to the applicant at the address for service that he had given in his application inviting him to a hearing on 11 March 2008. On 7 March 2008 a response to hearing invitation was received by the Tribunal [CB69] indicating that the applicant did not wish to come to a hearing. On 28 April 2008 the Tribunal determined to affirm the decision not to grant him a protection visa and handed that decision down on 20 May 2008. The applicant applied to this court for a review of that decision on 16 June 2008.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were set out in an attachment to his protection visa application form found at [CB27]-[28]. He told how he was a resident of the province of Punjab in Pakistan and came from a family with strong associations with the TNFJ Political Party. He described how his party had fallen into dispute with the Sunni Extremist Party (the SSP) and how those people had threatened his father and himself [CB 28].
“I was followed many times by workers of the SSP, similarly my father faced a lot of persecution by the hands of the workers of the SSP. I was bashed and badly beaten by the hands of the workers of the SSP, my father and my two brothers were killed by the hands of the above group. The workers of the SSP attacked our mosque with home made bomb at the prayers of ASHA ...
This incident coupled with others created a lot of panic in the district [S] ... because, many other incidents happened because of the sectarian clashes during the course of the happening many persons were injured by the bullets as the offenders used the fire-arms during the attacks on the Mosque. [M]y father was killed as I submitted in the above paras, luckily I, survived, I too was survived although I had received some minor injuries during the incident. I then left for Thailand to save my life …”
The Tribunal repeated the applicant's claim in full at [CB76]-[77]. It noted that he had submitted his passport which contained evidence that he had travelled to various Schengen countries, China, Thailand, Laos, Malaysia, Singapore, South Africa, Switzerland and Canada. The Tribunal expressed its views at [CB78]:
“As the applicant chose not to attend the hearing he was invited to, the Tribunal was not able to explore with him his claimed fear of serious harm should he return to Pakistan. In particular, it could not explore in detail his claim concerning how, when, why and where his father and brother were killed by the SSP, nor could it explore with him his claim that he was bashed and badly beaten by this group, or this claim that his immediate family is now at risk ...
The Tribunal was further unable to explore with him the circumstances in which he left Pakistan and his travels since that time. In particular, it could not explore with him his employment and what countries he might have been to in that time, nor could it explore in detail with him how and when he managed to return to Pakistan secretly to visit his family. Finally, the Tribunal could not explore with the applicant why he believed he was unsafe living in Thailand and had come to Australia and why it is not safe for him to return to Pakistan now.”
The inability of the Tribunal to obtain this information meant that it was not positively satisfied as required by s.65 of the Migration Act 1958 (Cth) (“the Act”) and the authorities that the applicant was indeed a person who had a well-founded fear of persecution for a Convention reason. This is an understandable conclusion to come to given the nature of the applicant's history and his failure to attend the hearing.
The applicant appeared before me today. He told me that he really did not understand the Australian legal system or the migration system and did not appreciate how important it was for him to have attended the hearing before the Tribunal. He believed the Tribunal should have given him another chance, although there is no evidence that he wrote to the Tribunal after the date for the hearing had passed, or even after the decision had been handed down to explain why he did not attend.
The grounds of his application allege a gross violation of jurisdictional error without particularising any such error or the legal errors referred to in the first ground. It then makes a claim that the applicant was a person who satisfied the four key elements of being a refugee and that the Tribunal did not consider the claim of the applicant which was a clear jurisdictional error. I am quite satisfied from my reading of the Tribunal decision that the Tribunal did consider the application and the matters put before it and had explained in an appropriate why it was unable to reach the state of satisfaction required. There is no jurisdictional error in the way in which it did this.
On 16 September 2008 the applicant filed an amended application. That document which consists of three pages is in essence a history of the applicant's problems in Pakistan which appear to expand somewhat the history that he gave to the Tribunal. As I advised the applicant, this court is not allowed to take into account this type of new evidence and is not in a position to grant him a visa in any event. There is nothing in the amended application which would cause me to resile from the views which I have taken as to the original application, namely that there is no jurisdictional error in the actions of the Tribunal.
The application is dismissed. The applicant shall pay the first respondent's costs assessed in the sum of $3000.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 10 November 2008
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