SZMKS v Minister for Immigration - [2008] FMCA 1725

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1725

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant failed to attend Tribunal hearing – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A, 441A

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
S58S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant:

SZMKS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1571 of 2008

Judgment of:

Barnes FM

Hearing date:

10 December 2008

Delivered at:

Sydney

Delivered on:

10 December 2008

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $2,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1571 of 2008

SZMKS

Applicant

And

MINISTER FOR IMMIGATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision signed on 5 May 2008 and handed down on 27 May 2008 affirming a decision of a delegate for the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Indonesia, arrived in Australia in November 2007 and applied for a protection visa. In a statement accompanying his protection visa application he claims to fear harm from a named lieutenant and his family whom he had accidentally hit in a car accident. The applicant claimed that the lieutenant demanded money from him which he paid, but then made further demands for money and threatened action against the applicant if he did not pay. These demands lead to the applicant going into hiding and not being able to continue his employment as a taxi driver. He claimed his family had been threatened, that the lieutenant had threatened to kill him and that members of the military had demanded to know his whereabouts.
The application was refused by a delegate of the first respondent, in essence because he found that the applicant's claimed fear of harm arose from criminal activities and that he had not identified a Convention reason as the essential and significant reason for his claimed fear of harm.
The applicant sought review by the Tribunal by application lodged on 4 February 2008. In that application he provided one address as both his residential address in Australia and also his address for correspondence.
On 26 February 2008 the Tribunal wrote to the applicant by letter addressed to the address provided in the review application advising him that it had considered the material before it but was unable to make a favourable decision on that information. The Tribunal invited him to attend a hearing on 4 April 2008 at a time and location specified and also advising him that it may make a decision without further notice if an applicant failed to attend a scheduled hearing.
The first respondent relies on an affidavit sworn by P Snell on 10 July 2008 which annexes a copy of an extract from the Tribunal's registered post records from 27 February 2008 which I accept establishes that correspondence was sent to the applicant at the address specified in the review application by registered post on 27 (sic) February 2008. The form bears a registered post number which is the same as the registered post number marked on the copy of the letter of 26 February 2008 in the Court Book. On the information before me I am satisfied that the letter was despatched by pre-paid post within three days of the date of the letter. I note that the copy letter in the Court Book bears a handwritten annotation that it was posted 26 February 2008, notwithstanding that the registered mail records make it clear that the date of posting was in fact 27 February 2008.
The applicant did not attend the Tribunal hearing. There is no evidence that he responded in any way to the hearing invitation. The Tribunal proceeded to determine the matter in his absence pursuant to s.426A of the Migration Act 1958 (Cth) without taking any further action to allow him to appear before it. The Tribunal recorded that it had not received a response to the invitation, summarised the applicant's claims to fear persecution from the named lieutenant and his associates (including a group of what he described as “Green Barret”) if he returned to Indonesia. However it found that the applicant had provided only a brief outline of his claims and that important aspects of his claims were general and lacking in detail.
The Tribunal referred to the fact that there was limited information on certain aspects of the claims, vague information on others and that the applicant had not explained particular matters, including how he managed to avoid detection by the lieutenant and the Green Barret, how he managed to leave Indonesia or what kind of harm he feared if he were to return and why this was for a Convention reason.
The Tribunal regarded the applicant's claims as “mere assertions” which it had not had the opportunity to test at a hearing. Given the lack of detail in the claims and without the opportunity to test the truthfulness of the claims at hearing, the Tribunal was not prepared to simply accept them.
The Tribunal was not satisfied on the information before it that the applicant was involved in an accident with the lieutenant as claimed, that he was subsequently asked for money as claimed, threatened or had to go into hiding. It was not satisfied that the applicant had a well-founded fear of persecution for Convention reason if he returned to Indonesia or that he was a person to whom Australia had protection obligations.
The applicant sought review by application filed in this Court on 19 June 2008. Despite being given the opportunity to do so, he did not file an amended application, nor did he file written submissions. The only ground in the application is that the Tribunal failed to provide the applicant with copies of relevant documents on which it “actually relied” in making its determination and failed to give him a proper opportunity to respond to that information.
Insofar as this ground, which was not elaborated on in oral submissions, may be seen as raising a contention that the Tribunal failed to comply with s.424A(1) of the Act, it is not made out. As set out above, the basis of the Tribunal's decision was its inability on the limited information before it to reach the level of satisfaction required of it to grant the applicant a protection visa.
The Tribunal decision was not based on documents, or indeed other material such as to constitute information within the meaning of s.424A(1) in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] or otherwise. Section 424A is not enlivened by the circumstances of this matter and no failure to comply with that section is apparent on the material before the Court.
This ground might be seen as taking issue with whether the Tribunal complied with its obligations under ss.425 and 425A of the Act to invite the applicant to attend a hearing to give evidence and address issues. No failure to comply with the procedural requirements of the Act is made out. As set out above, by the hearing invitation dated 26 February 2008, the Tribunal invited the applicant to appear before it to give evidence, gave him notice of a specified date, time and place for the hearing by one of the ways specified in s.441A. The letter was despatched within three days of its date by pre-paid post to the last address for service nominated by the applicant within s.441A(4) and provided a period of notice to the applicant that was at least the prescribed period of 14 days notice provided for in reg.4.35D of the Migration Regulations. The letter also contained a statement in relation to the options available to the Tribunal if the applicant failed to appear as required under s.426A of the Act. Hence the invitation complied with the statutory requirements of the Migration Act.
The applicant failed to respond to the invitation and did not attend the scheduled hearing. The Tribunal was entitled to proceed as it did in accordance with s.426A of the Act.
Moreover, the Tribunal was not obliged to accept the applicant's claims at face value (see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287) having indicated in its hearing invitation that it was unable to find in the applicant’s favour on the material before it. It invited him to attend a hearing. It found that the applicant's claims were not sufficient to establish that he had a well founded fear of persecution. It gave him an opportunity to elaborate on his claims. When he failed to accept that opportunity, as stated in NAVX at [5], the “inevitable consequence” was the rejection of his application.
In S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492 it was suggested at [25] that by choosing not to attend a hearing the applicant is to be taken to have assumed the risk that any omissions, inconsistencies or unsatisfactory features of his documents or indeed his claims would be noted by the Tribunal without him having an opportunity to expand upon or clarify them. The applicant apologised for not attending the Tribunal hearing. He told the Court that he had not been around at the time. However those circumstances are not such as to establish that the Tribunal failed to meet its obligations under the Migration Act or that it otherwise fell into jurisdictional error.
The applicant also contended that his claims in relation to the lieutenant were all true. As I endeavoured to explain to him, merits review is not available in this Court and his general wish to stay in Australia for a longer period of time to earn further money to meet his indebtedness is not a basis on which the decision of the Tribunal can be set aside.
As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful and the first respondent seeks costs in the sum of $2,700. The applicant indicated that he had no money, however his lack of funds is not in the circumstances of this case, a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
The amount sought is at the lower end of the sort of amounts that are normally sought in matters of this kind. I consider it is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 24 December 2008