SZMMB v Minister for Immigration
[2008] FMCA 1699
•12 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMMB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1699 |
| MIGRATION – Review of decision of RRT – where applicant did not attend hearing. |
| Migration Act 1958, ss.65, 424A |
| Applicant: | SZMMB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1682 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 December 2008 |
| Date of Last Submission: | 12 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2008 |
REPRESENTATION
| For the 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 $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1682 of 2008
| SZMMB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 3 December 2007 and who applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 18 January 2008. On 14 February 2008 a delegate of the Minister declined to grant a protection visa and on 17 March 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. On 9 April 2008 the applicant was invited to attend a hearing before the Tribunal. It was explained to him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal also told the applicant in the letter that it would only change the hearing date for good reason and:
“Please contact the Tribunal immediately if there is a difficulty in the hearing proceeding on this date. Please note that the Tribunal may make a decision without further notice, of an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.” [CB 48]
The applicant did not attend the scheduled hearing. On 12 May 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 29 May.
The applicant's grounds for claiming he was a person to whom Australia owed protection obligations were annexed to his protection visa application [CB 30]. In the statement he explained that he had breached the Chinese one child policy and in 1995 the local authority had come to his home and made him pay a fine of RMB 20,000 Yuan. About five years later the Local Government came again and told him that the fine had not been paid. He told them that it had but they did not accept this and fined him RMB 50,000 Yuan. He refused to pay the money. There was a fight and the applicant was beaten by the local government official and some other officers:
“I just a manager in a trade company, I only got 6500 Yuan each month, 6500 Yuan is nothing in China. I had to spend on my family life, and therefore, we do not [have] enough income to pay this fine. For this reason my family has experienced mistreatment in the past years. I had to pay a higher amount of money for my two sons to attend school.
My friends told me to travel overseas to avoid the trouble from the local government. So with a friend's help I came to Australia … I am afraid if I go back, I will never be able to pay the fine and the Government will continue to mistreat me.” [CB 30]
In its statement of decision and reasons commencing at [CB 59] the Tribunal sets out this history at [CB 61]. At [32] of [CB 63] the Tribunal states:
“[32]The applicant did not attend the hearing and this leaves the Tribunal with claims which are untested and stated in the most general of terms. The Tribunal is unable to be satisfied the applicant has a well founded fear of persecution because the Applicant has not provided sufficient factual details of his claims. He also has not provided sufficient information or evidence which could show there is a relevant causal connection between the mistreatment he fears and one of the grounds set out in the convention.”
The finding made above is not surprising considering that the Tribunal is required pursuant to s.65 of the Migration Act 1958 (the “Act”) to be satisfied that the criteria prescribed by the Act have themselves been satisfied. The relevant criteria here being that the applicant is a person who is a non-citizen in Australia entitled to access the protection of Australia pursuant to the obligations that this country undertook by being a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. It would be difficult for the Tribunal to have come to such a state of satisfaction in regard to two incidents, the last of which occurred at least 8 years ago.
On 1 July 2008 the applicant filed an application with this court seeking review of the decision of the Refugee Review Tribunal. He stated that the decision was affected by jurisdictional error in that the Tribunal had failed to invite him to comment upon adverse information. The Tribunal thus breached s.424A of the Act. No adverse information was used in coming to the decision of the Tribunal which was based purely on the applicant's inability to satisfy the Tribunal of the requirements under the Act.
The second ground of application was that the applicant was unable to attend the Tribunal due to exceptional circumstances beyond his control. He said he was sick and could not attend the hearing. Today, before me, the applicant repeated that he was sick. He told me that he had a cold. He told me that he had not telephoned the Tribunal to inform them that he had had a cold and ask for a postponement. He told me that he had not written to the Tribunal and informed them that he had had a cold and he was unable to bring to this court any medical corroboration of his claim.
In the circumstances I am unable to see how the decision of the Tribunal could be said to be one infected with jurisdictional error and I must therefore dismiss the application. I order the Applicant to pay the First Respondent’s costs which I assess in the sum of $3,000.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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