SZMQU v Minister for Immigration
[2008] FMCA 1500
•28 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMQU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1500 |
| MIGRATION – RRT decision – Indonesian woman claiming fear of persecution – did not attend Tribunal hearing – no arguable case – application dismissed at show‑cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), s.426A(1) |
| NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592 |
| Applicant: | SZMQU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2146 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 28 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2146 of 2008
| SZMQU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in January 2008, and on 26 February 2008 she lodged an application for a protection visa. The application explained very briefly why she claimed to fear return to Indonesia.
The applicant said that in October 2007 she was told by her mother that her father’s company was in trouble because the government had accused her father of corruption, and that he had been arrested and his company “sealed up”. Her mother said that her father had been “framed up by one of his competitioner and he wanted to massacre my father so he just set a trap for my father”. She said that her father asked her mother to arrange for her to go overseas because it “will be very dangerous for us”.
The applicant said that she feared that her father’s competitors “will chase me and give me some trouble or even kill me if I go back to my own country”. She said that she did not believe the authorities of her country could protect her “because they have no full power”.
No details nor supporting evidence of these events were given to the Department of Immigration, nor on appeal to the Refugee Review Tribunal.
A delegate of the Minister refused the application on 7 April 2008. The delegate thought that the applicant’s claims were vague and general, without any specific Convention nexus. The delegate also did not accept that the authorities in Indonesia would withhold protection from the applicant for a Convention reason. For those reasons, the delegate found that the harm feared by the application was not Convention related. The delegate also suggested that the lack of verifiable and credible detail suggested that the situation was not as claimed.
On appeal, the applicant gave a residential address in Katherine in the Northern Territory, but requested that the Tribunal send correspondence to a post office box at Bardwell Park in Sydney. The Tribunal sent a letter to the applicant at that address, informing her that it had been unable to make a favourable decision on the information before it. The Tribunal invited the applicant to attend a hearing which would be held by video conference involving the applicant at a location in Katherine. The letter warned the applicant that the Tribunal might make a decision without further notice if she failed to attend.
The Tribunal subsequently received a “Response to Hearing Invitation” form signed by the applicant, which indicated that she wished to attend. However, she did not attend the appointed location within half an hour of the appointed time.
The Tribunal then proceeded to make a decision as, in my opinion, it was clearly authorised to do under s.426A(1) of the Migration Act 1958 (Cth). It is well established that the Tribunal was not obliged to make inquiries into the reason for the applicant not being in attendance (see NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592).
In a decision handed down on 22 July 2008, the Tribunal affirmed the delegate’s decision. The Tribunal said that the applicant did not provide it sufficient information or relevant detail to satisfy the Tribunal that her claims were true, or “that they are even Convention‑related”. It was therefore not satisfied that her fears of persecution in the future were well‑founded.
The applicant now asks the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal. I can only make these orders if I am satisfied that jurisdictional error affected the Tribunal’s decision. The applicant’s application was set down today for a hearing whether it raised an arguable case for establishing jurisdictional error.
The applicant has been given an opportunity to file an amended application and further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. She has filed a document called a “short written outline of submissions”, but no other material.
Her application contains the following grounds:
1.The decision of Refugee Review Tribunal was made in excess of the jurisdiction and is consequently void and of no effect.
2.The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.
3.The decision did not take into account the real situation which is in favour of the applicant.
These grounds are devoid of any particulars allowing them to be given meaningful content. I am unable to find any arguable jurisdictional error, including of a procedural nature. On the Tribunal’s statement of reasons, it took into account all the material which the applicant had presented to it and to the Department of Immigration. In my opinion, the application does not raise an arguable ground for the relief it claims.
The applicant’s written submission does not do so either. It repeats very briefly the applicant’s claim that she feels she would not be safe if she returned to Indonesia. However, this is not a matter that the Court can itself inquire into, and it cannot provide her with a successful ground in this application.
The applicant today had no submissions to make to me, including to explain her absence from the Tribunal’s hearing.
I consider it is appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 11 November 2008
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