SZNGO v Minister for Immigration
[2009] FMCA 871
•19 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNGO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 871 |
| MIGRATION – Review of decision of RRT – where Tribunal was unable to reach the required state of satisfaction as the applicant did not appear at hearing. |
| Migration Act 1958, ss.36(2)(a), 426A |
| First Applicant: | SZNGO |
| Second Applicant: | SZNWV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 421 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 August 2009 |
| Date of Last Submission: | 19 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2009 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 421 of 2009
| SZNGO |
First Applicant
| SZNWV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of Indonesia who arrived in Australia on 7 July 2008 and who applied to the Department of Immigration and Citizenship for protection (Class XA) visas. On 14 August 2008 a delegate of the Minister invited the applicants to an interview. They did not attend. On 26 September 2008 the delegate decided to refuse to grant the protection visas. On 24 October 2008 the applicants applied for review of that decision from the Refugee Review Tribunal. They were invited to attend a hearing before the Tribunal. They did not attend. On 16 January 2009 the Tribunal determined to affirm the decision not to grant the protection visas.
The grounds upon which the applicants claimed they were persons to whom Australia owed protection obligations were that they were Catholic adherents who had been brought up in Catholic families and in Catholic schools. Following the Bali bombing in 2002 life had changed for people in Bali especially people like themselves who were involved in the tourism industry as chefs. The restaurants that they worked in had been closed down. Their standard of living was severely reduced. They were required to live on the female applicant’s wages from working in the local supermarket.
The problems they suffered were made even more severe after the second Bali bombing in 2005. They were particularly concerned because they were living amidst people they suspected of being radical Muslims who they felt were intimidating their local community. They stated that their local churches had been closed for a while and that their community leader, who had tried to continue the community gathering and art performances, was kidnapped. Some houses were burnt and some young activists who were campaigning against the extremists disappeared. They told in their statement that the situation happened again and again and so eventually they decided they could not remain in Bali and came to Australia.
The Tribunal determined under s.426A of the Migration Act 1958 (the “Act”) that it could proceed to decide this application without hearing further from the applicants who had not attended the hearing and who had not provided the Tribunal with any means of getting in touch with them other than by letter to the address they had provided. I am satisfied that the Tribunal acted reasonably in coming to that view. The Tribunal accepted that the applicants were citizens of Indonesia but noted that they had provided no documentary evidence in support of their claims and they had provided no further information to the Tribunal at the time they lodged their review application or afterwards.
“The claims before the Tribunal are lacking in essential detail. While the applicant stated that in 2005 the Muslim groups were trying to intimidate his local community, there are no details in his application in relation to anything that has happened since. The applicant was invited to appear before the Tribunal, but did not do so. As a consequence, the Tribunal has been unable to question him further as to the veracity of his claims leaving these claims unclarified and the Tribunal’s questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or because of his membership of a political or social group if he returns to Indonesia in the foreseeable future.”
The Tribunal concluded that the first named applicant did not satisfy the criteria set out in s.36(2)(a) of the Act and that the second applicant did not make her own claim to be a person who required Australia’s protection and that, therefore, she could not satisfy the relevant criteria set out in s.36(2)(b).
The applicants filed an application with this court for review of the decision of the Refugee Review Tribunal on 23 February 2009. They were assisted in filing the application by a “friend”. There were three grounds:
“(1) The Tribunal failed to address the full claims of my application for a protection visa.”
In the Tribunal’s grounds and reasons it sets out the statement made by the applicants found at [CB 37] and annexed to the PVA. It considered all those matters in the context of a non-appearance by the applicants. It had a number of questions it wished to ask the applicants but they were not there to answer them. The claims that were made were addressed and they were found to be too vague to justify the grant of a visa. The Tribunal was unable to obtain any further details about the claims because of the absence of the applicants.
The second ground was that:
“(2)It is not reasonable for the Tribunal to make the finding that I would not face a risk of being prosecuted (sic) on returning to Indonesia.”
The Tribunal did not make that finding. It made a finding that it could not be satisfied that the applicants would not face persecution. That is all that it was required to do pursuant to s.36 of the Act which mandates a test of satisfaction and not a test of certainty.
The third ground is that:
“(3) The Tribunal did not adequately consider that I would be put into danger if I went back to Indonesia.”
If the applicants’ statement is considered carefully one will note that it never states that the applicants will be put in danger should they return to Indonesia. What they actually said was:
“We don’t want to waste our life and our time in our village where we cannot have any guarantee when we can have a peaceful life. Hopefully we can have a better living condition for our future. The most important thing is that we feel secure there and can live in a normal condition without intimidations and terrors.”
The Tribunal did consider this statement and, as I have said, came to the view that it did not provide enough detail to allow it to come to the state of satisfaction required under the Act. I can find no jurisdictional error in what the Tribunal did.
The applicants appeared before me today. They were unable to provide any further illumination of the grounds of application asking only that the court provided them with further time to remain in Australia and to work. This is not within the power of the Federal Magistrates Court.
The application is dismissed. The Applicants are to pay the First Respondent’s costs which I assess in the sum of $3,500.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
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