SZOKM v Minister for Immigration
[2010] FMCA 547
•22 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOKM v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 547 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of failure of the applicant to appear – whether the grounds of the application have any reasonable prospects of success. |
| Migration Act 1958 (Cth), ss.65(1)(b); 425; 425A; 426A Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05 |
| SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 |
| Applicant: | SZOKM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REIVEW TRIBUNAL |
| File Number: | SYG 1068 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 July 2010 |
| Date of Last Submission: | 22 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2010 |
REPRESENTATION
| No appearance by or on behalf of the applicant |
| Solicitor for the Respondent: | Ms L.Weston, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1068 of 2010
| SZOKM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to r.13.03C(1)(c) that the proceeding before this Court, commenced by way of application filed on 14 May 2010, be dismissed by reason of the applicant’s failure to appear at this morning’s scheduled hearing.
I note the time is now 10.52am and I note that the hearing this morning commenced at 10.34am.
I note that the applicant appeared before me at a first Court date on 9 June 2010. On that occasion I explained to the applicant that the grounds of her application did not disclose an error capable of review by this Court and that this Court only had jurisdiction to consider whether or not the decision of the Refugee Review Tribunal (“the Tribunal”) was made according to law. I explained to the applicant that it was not the role of this Court to reconsider her claims and make different factual findings or reach different conclusions. I explained to the applicant that if she was unsuccessful in her application, she may be ordered to pay costs in accordance with the costs schedule of this Court. The applicant then confirmed that she wished to continue with her proceeding.
I then made directions giving the applicant leave to file and serve an amended application, giving complete particulars of each ground of review relied upon, by 7 July 2010. The applicant was also directed to file and serve any evidence by way of affidavit by 7 July 2010. The applicant was directed to file and serve written submissions by 15 July 2010.
The matter was set down on that occasion for final hearing today at 10.15 before me. I note that there has been no document filed by or on behalf of the applicant, either in accordance with those directions or otherwise.
On the occasion of the first Court date, on 9 June 2010, the applicant was referred to the Court’s Legal Advice Scheme. The panel adviser wrote to the applicant at the address on the applicant’s application, arranging for a conference at 3.30pm on 2 July 2010. The applicant did not attend the conference, nor did she, as requested, telephone the panel adviser.
I further note that on 9 June 2010 the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language.
There has been no communication received from the applicant, or any person on behalf of the applicant, either by this Court or by the first respondent’s solicitors seeking an adjournment of today’s proceeding, or for any other reason.
In the circumstances, I am satisfied that the applicant was aware of today’s hearing, and for whatever reason has chosen not to attend.
In support of the respondent’s application for dismissal, the first respondent’s solicitor, Ms Weston, tendered a letter, dated 10 June 2010, on DLA Phillips Fox letterhead, addressed to the applicant, at the address identified by the applicant on the application. That letter is marked Exhibit 1R. Exhibit 1R informed the applicant that the matter was listed for hearing today at 10.15am. Exhibit 1R further informed the applicant that if she did not attend the hearing the first respondent may seek to have the matter dismissed, with costs, for non-appearance.
The first respondent also tendered on the application the bundle of relevant documents identified as the Court book, filed on 11 June 2010 and marked Exhibit 2R.
In considering whether to dismiss the proceeding before this Court, I also have regard to the ground of the application. It is as follows:
“I did not have the chance to pick up the letter from the post office because whenever I return home the post office has already close. (sic) That is why I did not attend the interview.”
Plainly this ground does not identify an error capable of review by this Court.
Exhibit 2R makes clear that the applicant lodged an application for a protection visa on 30 November 2009 asserting a fear of persecution in Fiji by reason of her Methodist religion and the military dictatorship. The applicant stated in her protection visa application that she feared being victimised as a member of the Methodist religion, and that for people of Fiji to express anti-military or anti-government views put such persons at risk of their life if their opinions were discovered.
On 22 January 2010, the applicant attended an interview with a delegate of the Department of Immigration and Citizenship (“the Delegate”). The Delegate determined that the applicant was not a person to whom Australia has protection obligations. The Delegate noted that the applicant had not suffered past persecution and found that there was no nexus between her generalised statements and any fear. The delegate further found that the applicant was not targeted in any way and enjoys the same protection as other Fijian citizens.
On 19 February 2010, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Tribunal wrote to the applicant on 22 February 2010 acknowledging receipt of her application, and again on 4 March 2010, notifying her that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone.
The address provided by the applicant, both on her protection visa application and on her review application, is the same address as provided on the application to this Court filed on 14 May 2010.
The letter of 4 March 2010 invited the applicant to appear before the Tribunal on 9 April 2010 to give evidence and to present arguments. I note that a handwritten note on the letter of 4 March 2010 states that it was posted on 5 March 2010. I further note that both letters were returned to the Tribunal: the letter dated 22 February 2010 on 24 February 2010; and the letter dated 4 March 2010 on 8 March 2010. Markings on both identify the letters as “Unclaimed”.
The applicant did not attend the hearing before the Tribunal. The Tribunal noted that it had written to the applicant on 4 March 2010 in the terms of the letter referred to above. The Tribunal noted that the applicant did not attend the hearing or contact the Tribunal to explain her failure to attend, and in those circumstances the Tribunal decided to exercise its discretion, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”), to make its decision on the review without taking any further action to enable the applicant to appear before it. That course was open to the Tribunal in circumstances where the invitation would appear to have been sent to the applicant in accordance with s.425 and s.425A of the Act.
Further, I have regard to the decision of Bennett J in SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457, where her Honour stated at [32] the fact that the appellant was unaware of the hearing and that the Tribunal may have had notice of this was of no legal consequence and “The Tribunal was not required to take into account the fact that the invitation to hearing sent to the appellant’s home address has been “returned to sender””.
Whilst I make no final determination, it would appear that the Tribunal was entitled to exercise its discretion as it did, to take no further step to invite the applicant to appear before it.
The Tribunal’s decision record makes clear that it had regard to the applicant’s claims in her protection visa application and noted that the applicant repeated the claims at the interview with the Delegate. The Tribunal also noted, particularly, the country information to which it had had regard, including information that “virtually all native Fijians are Christian, with approximately 85 per cent being Methodist”.
The country information acknowledged that human rights violations under the military government had taken place and that Methodist conference on 4 June 2009 had been cancelled and detentions and arrests of several leaders of the Methodist Church made. However, the Tribunal found that without the opportunity to explore the applicant’s claims with her at a hearing, the Tribunal was unable to be satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reason of her religion, or for any other Convention reason if she were to return to Fiji.
The Tribunal accepted that the applicant is a member of the Methodist Church. However, the Tribunal found that there was no evidence before it that, on the grounds of their religion, lay members of the Methodist Church, such as the applicant, faced a real chance of serious harm at the hands of the military. Accordingly, the Tribunal affirmed the decision under review.
Again, whilst I make no final determination, there is no jurisdictional error apparent in the findings and reasons of the Tribunal for affirming the decision under review. It is for an applicant to satisfy a decision maker such as the Tribunal that such a person meets the criteria for being a refugee. Section 65(1)(b) of the Act mandates that if the decision maker is not so satisfied a protection visa must be refused.
It would appear that the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave. In the circumstances, the Tribunal’s decision would not appear to be affected by jurisdictional error and the ground of the application does not establish that the applicant has any, or any real, prospect of success.
In the circumstances, there being no apparent jurisdictional error and having regard to the failure of the applicant to appear at today’s scheduled hearing, the orders sought by the first respondent should be made.
Accordingly, I Order that the proceeding before the Court, commenced by way of application filed on 14 May 2010, be dismissed with costs.
RECORDED : NOT TRANSCRIBED
I direct the first respondent to notify the applicant forthwith of the Orders made today, and to provide also to the applicant a copy of Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
RECORDED : NOT TRANSCRIBED
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 28 July 2010
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