SZMLX v Minister for Immigration
[2008] FMCA 1253
•3 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMLX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1253 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| First Applicant: | SZMLX |
| Second Applicant: | SZMLY |
| Third Applicant: | SZMLZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1678 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 3 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2008 |
REPRESENTATION
No appearance by or on behalf of the Applicants
| Solicitors for the Respondents: | Ms J Dinihan Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,390.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1678 of 2008
| SZMLX |
First Applicant
SZMLY
Second Applicant
SZMLZ
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 10 April 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants. The first applicant is, I understand, the mother of the remaining two applicants. They arrived in Australia from Korea on 1 September 2003 and applied to the Minister's Department for protection visas on 1 November 2006. The Minister's delegate refused that application on 2 December 2006. On 10 January 2007 the applicants applied to the Tribunal to review the delegate's decision.
The Tribunal was unable to make a favourable decision on the papers and invited the applicants to a hearing. They did not attend. The Tribunal satisfied itself that the hearing invitation had been properly sent to the applicants’ authorised recipient and elected to proceed without them, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal noted that the first applicant had claimed that her husband was once actively involved in organising anti‑government demonstrations demanding the abolition of the national security law of Korea which restricted political freedoms.
The Tribunal considered that the first applicant's claims were vague and general and noted the lack of detail in those claims. The Tribunal concluded that without more information it was difficult to know what significance could be attached to the first applicant's assertions. The Tribunal concluded in view of the insufficient information and lack of detail in the first applicant's claims that it was unable to be satisfied that she had been persecuted for a Convention reason in the past or that there was a real chance that she would be persecuted for a Convention reason in the future.
These proceedings began with a show cause application filed on 1 July 2008. The applicants were given the opportunity to file and serve an amended application but they have not taken up that opportunity. The application is supported by a short affidavit which I received as evidence. I also have before me the court book filed on 25 July 2008.
The applicants did not attend when this matter was called at 2.23pm and 2.26pm today. The Court was, however, successful in contacting the first applicant by telephone. She stated that a friend who had apparently assisted her with her application to the Court had suggested that she could be absent from today's hearing. I reminded the first applicant that she had appeared before me in person on 16 July 2008 with the assistance of a Korean interpreter at which time I had made orders by consent listing the matter for a show cause hearing at 2.15pm today. I stressed that I had told her at that time of the need for her to return to Court today. She told me that she had come to the view that her application to the Court was unlikely to succeed, apparently based on some advice she has received, and she had concluded in the circumstances there was no point in attending. I gave the first applicant the option of attending by telephone or disconnecting. She elected to disconnect. The matter then proceeded in the absence of the applicants.
The show cause application contains three grounds the terms of which I incorporate in this judgment:
1.Not all of the information I submitted to the DIAC and the Tribunal was properly considered.
2.My claim that the National security Law in Korea still in force to arrest people like me was denied by the DIAC and the Tribunal.
3.Neither of the Respondents requested for any information from the Applicant to prove the veracity of her claim.
There is in my view no substance to any of those grounds. The Tribunal considered the applicants’ claims but found insufficient material to support them. The second ground in the application is an attack on the merits of the Tribunal decision. The third ground suggests incorrectly that there was some obligation on the Tribunal to request information from the first applicant to prove the veracity of her claim. I note from the court book at pages 65 to 67 that the applicants, through their authorised recipient, were advised to immediately send to the Tribunal any documents, information or other evidence they wanted the Tribunal to consider. It does not appear that they responded to that request.
In my view, the Tribunal met its obligation to invite the applicants to a hearing. The hearing invitation was sent in accordance with the Migration Act to the applicants’ authorised recipient at his nominated address. The Tribunal satisfied itself that its discretion pursuant to s.426A was enlivened and the Tribunal was entitled to proceed without giving the applicants any further opportunity to appear.
I find that there is no arguable case of jurisdictional error by the Tribunal in this matter. I will order that the application is dismissed, 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 $2,390. The scale amount in this instance would be $2,500. I accept that costs of not less than $2,390 have been properly and reasonably incurred on behalf of the Minister when considered on party and party basis. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,390.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 September 2008
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