SZMOJ v Minister for Immigration - [2009] FMCA 292

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMOJ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 292

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

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

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZMOJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1957 of 2008

Judgment of:

Barnes FM

Hearing date:

24 March 2009

Delivered at:

Sydney

Delivered on:

24 March 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1957 of 2008

SZMOJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal signed on 4 June 2008 and handed down on 26 June 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Indonesia, arrived in Australia in December 2007 and applied for a protection visa in February 2008. He claimed that he came to Australia to seek protection as his shop in Jakarta Indonesia had been looted many times and some of his female relatives raped and some sexually harassed by native Indonesians. He also claimed that was almost killed in 1999 when several Indonesians broke into his home to rob him and that he had developed such a “psychological fear” he no longer wished to return to Indonesia.
The application was refused by a delegate for the first respondent and the applicant sought review by the Tribunal. In his application for review he provided a residential address. He advised that he did not have an adviser he had authorised to act for him in relation to the application. In response to that part of the form which asked where he wanted the Tribunal to send correspondence about his application, he advised an address for correspondence in Surry Hills.
The Tribunal wrote to the applicant at the Surry Hills address acknowledging receipt of the application. The material before the Court contains a copy of a letter dated 5 May 2008 from the Tribunal to the applicant at that Surry Hills address advising him that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information and inviting him to attend a Tribunal hearing at a date, time and place specified. It also advised the applicant that the Tribunal may make a decision without further notice if he failed to attend the scheduled hearing.
The Tribunal in its reasons for decision indicated that no response was received indicating that the applicant would attend the hearing. Somewhat confusingly the Tribunal stated:
No response was received on 29 May 2008 informing the Tribunal that the applicant would attend the hearing.
There is no copy of any response to hearing invitation form in the material before the Court. In any event, the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear and in those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal summarised the applicant's claims to fear harassment and systematic discrimination from native Indonesians, as set out in the protection visa application. It referred to the fact that he had not elaborated in his statement in the application form that he was an ethnic Chinese person, although it appeared that this may be intended to be the reason for the claimed persecution. However the Tribunal found that this was not clear and that there was no mention in the statement attached to the protection visa application of the applicant’s race, religion, nationality, membership of a particular social group or political opinion (except that he might be classified as in the particular social group of Indonesian shop owners persecuted by “native Indonesians”).
The Tribunal also observed that the applicant had provided no documentary evidence in support of his claims, other than his submission, which it summarised. The Tribunal found that his claims were not specific and were lacking in essential detail. While the applicant referred to a fear for his safety there was said to be no detail in relation to the claimed attacks on his person and family and just “generalised and unsubstantiated claims.”
The Tribunal stated that it wished to have the applicant elaborate on his personal situation in Indonesia at a hearing. It had invited him to appear, but he did not do so. Hence the Tribunal had been unable to question the applicant further as to the veracity of his claims. This was said to have left his claims unclarified and the Tribunal's questions unanswered.
The Tribunal found on the evidence before it that it could not be satisfied either that the applicant had suffered persecution in the past or that he had a well-founded fear of persecution for a Convention reason. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 29 July 2008. The grounds in the application are as follows:
(1)     An order that the tribunal member not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.
(2)     I meet the refugee criteria as I was discriminated by local Indonesian people.
(3)     My fear of persecution is well-founded.
These grounds merely state the order sought and otherwise make factual assertions taking issue with the findings of the Tribunal or perhaps seeking merits review.
In oral submissions the applicant reiterated his claim that his business was in trouble in Indonesia and that he could not keep doing his business. Neither the grounds in the application nor what the applicant said today establish any legal basis for the relief he claims or any jurisdictional error on the part of the Tribunal.
However, in the “Orders sought by the Applicant” part of the application, the applicant not only sought that the decision be set aside and costs, but also contended that the procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed. There are no particulars to this ground and the applicant did not file written submissions.
I asked the applicant today if he could explain the basis for this ground and the procedures that he said had not been observed by the Tribunal. He was not able to assist the Court and did not take issue with any particular aspect of the Tribunal procedures. The applicant did not claim not to have received the Tribunal’s invitation to a hearing.
In this case there is nothing in the material before the Court to suggest or establish that the Tribunal failed to comply with the requisite procedural obligations, in particular in ss.425, 425A, 441A of the Migration Act or that it was not empowered or did not properly consider the exercise of its discretion under s.426A to proceed to make a decision on the review without taking further action to enable the applicant to appear before it.
In that respect I note that the applicant provided to the Tribunal the address for correspondence that had been used in relation to his protection visa application. The Tribunal wrote to the applicant at that address, acknowledging receipt of the application. It invited the applicant to a hearing by letter dated 5 May 2008 and also invited him to attend the handing down of the decision on 26 June 2008. It is clear that the applicant became aware of the Tribunal decision, given the application for review filed in this Court on 29 July 2008.
There is nothing to suggest that the Tribunal was provided with any other address for correspondence and no issue was taken by the applicant in relation to the giving of the invitation to the hearing or its compliance with the formal requirements in the Migration Act. The letter of 5 May 2008 advised the applicant that the Tribunal was unable to make a favourable decision on the information before it, properly informed him of details of the hearing and that if he failed to appear the Tribunal may make a decision without further notice.
As indicated the Tribunal stated that no response was received informing the Tribunal that the applicant would attend the hearing. There is some possible ambiguity in the Tribunal statement “No response was received on 29 May 2008”. However, even if the applicant responded to the invitation to the hearing, it is not in dispute that he did not attend the Tribunal hearing. The Tribunal recorded that the invitation had been sent to the most recently advised address, that the applicant did not provide a contact telephone number and that he had no adviser or authorised recipient. It also recorded that he did not appear on the day and at the time and place scheduled.
In those circumstances it has not been established that there was any error in the Tribunal's consideration of its power under s.426A to make a decision on the review. Nor has any error been established in the Tribunal's decision that on the material before it it could not be satisfied of the applicant's claims (see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] and VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [5] – [16]). There is nothing in the material before the Court to suggest more generally that any other procedures required under the Migration Act or Regulations to be observed were not observed in connection with the making of the decision.
Finally, I reiterate for the benefit of the applicant that insofar as he seeks to make factual claims or seeks merits review of the Tribunal decision, merits review is not available in this Court.
As no jurisdictional error has been established the application must be dismissed.
The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,000. It is appropriate that the unsuccessful applicant meet the costs of the first respondent and I consider that the amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 6 April 2009