SZPFZ v Minister for Immigration
[2011] FMCA 417
•1 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPFZ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 417 |
| MIGRATION – Visa – Protection (Class XA) visa – application for judicial review of Refugee Review Tribunal decision – citizen of Indonesia claiming fear of persecution on the basis of ethnicity – where applicant did not attend Tribunal hearing – where applicant did not attend court. |
| Migration Act 1958 (Cth), s.476 Federal Magistrates Court Rules 2001, r.13.03C |
| Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 |
| Applicant: | SZPFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 353 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 June 2011 |
| Date of Last Submission: | 1 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2011 |
REPRESENTATION
| The Applicant: | No Appearance |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed due to the failure of the Applicant to attend court.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 353 of 2011
| SZPFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Indonesia. By her Application, filed on 1st March 2011, she asks the Court to review a decision of the Refugee Review Tribunal made on 28th January 2011. The Tribunal affirmed a decision by a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
In her Application, the Applicant asks the Court for an order in the nature of certiorari to quash, or set aside, the Tribunal decision.
The Applicant relies on the following grounds of review:
(1) The Refugee Review Tribunal’s decision involved jurisdictional error.
(2) The Refugee Review Tribunal asked itself wrong questions in making its decision.
(3) The Refugee Review Tribunal applied the wrong test.
The Applicant filed an affidavit to which she attached a copy of the Tribunal decision and stated:
I face a risk of being killed if I go back to Indonesia.
The Minister’s lawyers filed a Response on 7th March 2011, opposing the orders sough by the Applicant on the ground that:
The application has not raised an arguable case for the relief claimed [Rule 44.12(1)(a)]
Background
The Applicant arrived in Australia on 6th July 2010. On 29th September 2010 she applied to the Department of Immigration and Citizenship in Sydney for a Protection visa. In her application the Applicant stated that she wanted to apply for protection because she suffered discrimination in Indonesia. She stated that her family were Indonesian Chinese and they were discriminated against for that reason. She stated that:
During riot in Indonesia, our house was robbed. All of our belongings were taken by native Indonesians. We were very afraid to go on the street.
In 2004 I lost my job. And some of the native Indonesians were threatened me that if I ever appear in front of their eyes, they will kill me.
I want to apply for protection from Australian Government.[1]
[1] Court Book at page 9
On 12th October 2010 the Department of Immigration and Citizenship wrote to the Applicant, inviting her to telephone on a particular telephone number to arrange an interview with an officer of the Department.[2]
[2] Court Book 29
Although the letter was addressed to the applicant at the address she gave in her application for a visa, it was returned to the Department unclaimed on 28th October 2010.
On 9th November 2010 the Department wrote to the Applicant and advised her that her application for a visa had been refused.[3]
[3] Court Book 32
In the Protection (Class XA) Visa Decision Record dated 9 November 2010 the Minister’s delegate noted that, although the Applicant had been invited to contact the Department to arrange an interview:
The applicant did not contact the Department to arrange an interview, or to advise that there was a reason why she was unable to attend an interview.[4]
[4] Court Book 39
Although the delegate was satisfied that the Applicant was a citizen of the Republic of Indonesia who was outside that country, the delegate was not satisfied that the Applicant had substantiated her claim that she had a well founded fear of persecution. The delegate stated that:
Whilst the applicant’s written claims suggest a convention nexus, she did not avail herself of the opportunity to provide supporting evidence of her claims. If interviewed, the applicant would have been required to satisfy the decision maker that she feared harm for a Convention related reason. I therefore cannot be satisfied that she genuinely fears harm for a Convention related reason.[5]
[5] Ibid
The Department’s letter was also returned unclaimed, on 29th November 2010.[6]
[6] Court Book 41
Application to the Refugee Review Tribunal
Although the Department’s letters to the address given by the applicant had been returned unclaimed, the Applicant still managed to forward an Application for Review to the Refugee Review Tribunal.[7] The Application was received on 15th December 2010. The Applicant gave the same address for correspondence to the Tribunal that she had given to the Department of Immigration and Citizenship.[8]
[7] Court Book 42
[8] Court Book 44
The Tribunal wrote to the Applicant on 15th December 2010, acknowledging receipt of her Application for Review.[9] That letter was returned to the Tribunal unclaimed on 14th January 2011.[10]
[9] Court Book 47
[10] Court Book 48
The Tribunal wrote to the applicant on 31st December 2010, advising her that:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.[11]
[11] Court Book 49
The letter invited the Applicant to attend a hearing of the Tribunal to give evidence and present arguments. The hearing was scheduled for 11:00 am on 27th January 2011.
The Tribunal’s letter of invitation was returned unclaimed on 28th January 2011.[12]
[12] Court Book 53
The Applicant did not attend the Tribunal hearing on 27th January.
In its Decision Record, the Tribunal noted the Applicant’s non-appearance on the 27th and the fact of the hearing invitation being returned unclaimed on 28th January and stated:
In these circumstances, and pursuant to s. 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.[13]
[13] Court Book 61
The Tribunal set out in its Decision Record details of the Applicant’s claims taken from her application to the Department and referred to Country information from the 2010 Political handbook of the World relating to rioting in Jakarta against ethnic Chinese in May 1998. The Tribunal also referred to a report on Human Rights from the United States State Department from 2009.[14]
[14] Court Book 61
The Tribunal stated:
In the present case, the applicant’s claims are very vague and lacking in detail. For example, she appears to be referring to her family having suffered significant property loss during the 1998 riots, but this is unclear as she does not specify when this incident occurred. Other threats of violence mentioned in the applicant’s claims are given no reference point at all in terms of where and when they occurred. The only date which is specified in the applicant’s account is 2004, when she is said to have lost her job, but she gives no actual reason for this development, and although she indicates that she was discriminated against in the workplace, it also apparent from her application form that she was employed in the same workplace for 18 years before losing her job.
The Tribunal acknowledges that the applicant’s claims, if made out, could bring her within the scope of the convention on the basis of her race, namely her Chinese ethnicity.
However, although it is clear from the country information reproduced above that there continues to be some discrimination against ethnic Chinese in Indonesia, that information does not suggest that it has risen to the level of persecution for the purposes of s. 91R of the Act since 1988[15], after which there was a change of government and steps were taken by the Indonesian authorities to address the problems which had occurred.[16]
[15] sic
[16] Court Book 62 at [37]-[39]
The Tribunal noted that:
The applicant did not attend the hearing where she could have provided more details about her claims, and possibly addressed the concerns which the Tribunal has outlined above.[17]
[17] Ibid
In the absence of that information, the Tribunal was not satisfied that the applicant faced a real chance of experiencing serious harm capable of amounting to persecution if she were to return to Indonesia.
The Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention. Accordingly, the Tribunal was not satisfied that the Applicant met the criterion set out in s. 36(2) of the Act for a protection visa.
Submissions
Although a direction was made on the first Court Date for the Applicant to file and serve any amended application or affidavit by 2nd May 2011, no documents have been filed.
A direction was also made that the Applicant should file and serve any written submissions at least 14 days before the hearing, but the Applicant has not filed any submissions.
The Minister’s lawyers filed a written outline of submissions on 23rd May 2011.
Failure to attend Court
The Applicant did not attend court on the day of the hearing. The application was listed for final hearing at 2:15 pm. A solicitor attended Court on behalf of the Minister, and an interpreter in the Indonesian language attended Court to assist the Applicant.
There was no appearance by or on behalf of the Applicant when the matter was called at 2:15 pm and 2:45 pm.
No message has been received from the Applicant or anyone on her behalf to advise that she had been hindered, delayed or prevented from attending Court due to illness, injury or any other emergency. There is no explanation for her absence.
It follows that the Application will be dismissed under the provisions of Rule 13.03C.
The Minister seeks an order for costs. The amount sought is below the Court scale, at $4,500.00. I believe it to be an appropriate figure and I will so order.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 1 June 2011
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