SZPZG v Minister for Immigration
[2011] FMCA 418
•2 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPZG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 418 |
| MIGRATION – Visa – Protection visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – where applicant did not attend Tribunal hearing – where applicant did not attend Court – application dismissed with costs. PRACTICE & PROCEDURE – Extension of time – application for extension of time to apply. |
| Migration Act 1958 (Cth), ss.422B, 426A, 476, 477 Federal Magistrates Court Rules 2001, r.13.03C |
| Applicant: | SZPZG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 354 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 June 2011 |
| Date of Last Submission: | 2 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2011 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitors for the Applicant: | No solicitor on the record |
| Solicitor for the Respondents: | Mr Pinder |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Application is dismissed under r.13.03C of the Federal Magistrates Court Rules 2001.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 354 of 2011
| SZPZG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Indonesia. He is applying to the Court for judicial review of a decision of the Refugee Review Tribunal made on 18th January 2011. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
By his Application filed on 1st March 2011 the Applicant asks the Court to make the following orders:
(1)An order that the Court set aside the decision of the Refugee Review Tribunal.
(2)An order that the matter be remitted to the Refugee Review Tribunal for (determination) according to law.
(3) That the First Respondent pay the applicant’s costs.
The Applicant relies on the following grounds of review:
(1)The Refugee Review Tribunal misinformed itself of the particular circumstances of the applicant.
(2)The Refugee Review Tribunal incorrectly applied the test.
(3)The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act.
The Applicant also sought an extension of time to bring his application under s.477 of the Act. He provided three grounds, which essentially referred to the fact that he had been in Darwin when the Tribunal sent a copy of the decision by registered post.
On 28th March 2011, the first court date, the Minister consented to the application to extend the time for making the Application for Review.
The Applicant filed an affidavit in support of his Application. In that affidavit he stated that he believed that he met the refugee criteria and attached a copy of the Tribunal decision.
The Minister filed a Response to the Application on 22nd March 2011, opposing the orders sought by the Applicant. The grounds relied on are:
The application relies on three unparticularised grounds. The first ground asserts that the RRT took into account irrelevant considerations. Without further particulars this ground does not disclose jurisdictional error on the part of the RRT and is not capable of a meaningful response. The first respondent also notes that the applicant failed to attend a hearing before the RRT, and the RRT proceeded to make a decision pursuant to section 426A of the Migration Act 1958 (Cth).
The second and third grounds assert that the RT breached the rules of natural justice and procedural fairness. The first respondent notes that section 422B provides generally that the RRT’s statutory code(s) are taken to be an exhaustive statement of the natural hearing rule in relation to the matters they deal with.
Background
The Applicant applied for a Protection (Class XA) visa on 7th September 2010. In his application, he gave this reason for leaving Indonesia:
I was prosecuted when I was in Indonesia because of my ethnic Chinese. I was tolerated by local Indonesian when I was in Indonesia. Some local Indonesian threatened to kill me if I still stay in Indonesia. Thus I left Indonesia.[1]
[1] Court Book at page 17
The Applicant repeated his claim that local Indonesians had threatened to kill him if he still stayed in Indonesia and stated:
Thus, I do think this will happen to me if Ii go back.[2]
[2] Court Book 19
The Applicant went on to claim that:
I do not think that the Indonesian authorities can and will protect me if I go back. I was prosecuted when I was in Indonesia because of my ethnic Chinese…I went to Police station to seek help, but no one wanted to protect me.[3]
[3] Court Book 20
On 1st October 2010 the Department of Immigration and Citizenship wrote to the Applicant and invited him to telephone the Department on a particular number to arrange an interview with a Departmental officer about his case.[4]
[4] Court Book 27
The Applicant did not contact the Department to arrange an interview.
On 28th October 2010 the application for a Protection visa was refused.[5]
[5] Court Book 29
In the Protection (Class XA) Decision Record the delegate noted that the Applicant was a citizen of the Republic of Indonesia who was outside his country. However, the delegate was not satisfied that the applicant had substantiated his claims that he had a well founded fear of persecution.
The delegate noted:
In the interview letter the applicant was also advised that if he did not make himself available for an interview without an acceptable reason, the Protection visa application would be decided without any further delay, based on the information already held at the time.
The applicant did not contact the Department to arrange an interview, or to advise that there was a reason why he was unable to attend an interview.[6]
[6] Court Book 38
The delegate found that there was no Convention ground that was the essential and significant reason for the harm feared and that the Applicant did not have a genuine fear of harm or that there was a real chance of persecution occurring.
The Minister’s delegate refused to grant the Applicant a Protection (Class XA) visa.
Application to the Refugee Review Tribunal
On 30th November 2010 the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.[7]
[7] Court Book 41
The Tribunal wrote to the Applicant on 20th December 2010, advising him that it had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the Applicant to attend a hearing at 9:00am on 17th January 2011 so that he could give evidence and present arguments relating to the issues arising in his case.
The Applicant did not respond to the invitation and the registered letter forwarded to him at the address he gave on his application for review was returned unclaimed on 19th January 2011. He did not attend the Tribunal hearing.
The Tribunal noted that the Applicant had not attended the hearing and proceeded to make its decision on the review. The Tribunal stated:
The applicant did not appear on the relevant date and no response has been received from him since the hearing invitation was sent. Indeed, from the date of lodging his application on 30 November 2010 to the time of this decision, the applicant made no further contact with the Tribunal. In these circumstances, and pursuant to s. 426A of the Migration Act 1958, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.[8]
[8] Court Book 62 at paragraph [23]
In its Findings and Reasons, the Tribunal noted that the Applicant’s written claims were “spare and lack detail”, and said that at a hearing it would have questioned the applicant on a wide range of relevant details concerning his claims.
The Tribunal stated that:
As it is, these matters remain unanswered. The claims made by the applicant in his application form remain assertions without any supporting evidence or factual detail that would enable the Tribunal to assess the claim in its proper context. In the absence of more factual information in respect of these matters or any details in relation to his circumstances and whether the matter is Convention related, the Tribunal is not satisfied that the applicant suffered serious harm including threats and harassment or discrimination. Therefore the Tribunal finds on the information before it that he does not face a real chance of persecution on return to Indonesia now or in the reasonably foreseeable future.[9]
[9] Court Book 64 at [30]
The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
Submissions
At the First Court Date of the Application, the Court made directions by consent that the Applicant should file any affidavit containing additional evidence to be relied on and any amended application by 9th May 2011.
The Applicant was also required to file and serve written legal submissions 14 days before the hearing.
The Applicant has not filed any affidavit or an amended application. The Applicant has not filed any written submissions.
The Minister’s lawyers filed a Written Outline of Submissions and an affidavit of Philippa Clare Hinton affirmed 9 May 2011 on 24 May 2011.
The Hearing
The Applicant did not attend Court on the morning of the hearing. The matter was listed for 10:15am and it was called at 10:28 and 10:46am. There was no appearance by or on behalf of the Applicant on either occasion.
No message has been received from the Applicant or anyone on his behalf advising that the Applicant has been hindered, delayed or prevented from attending Court due to illness, injury or other emergency.
As the Applicant has not appeared and no explanation has been given, it is appropriate to dismiss the Application under the provisions of Rule 13.03C.
The Minister seeks costs in the amount of $3,000.00. Mr Pinder, who appears for the Minister, has submitted that this is significantly below the amount provided by the Scale.
This is a matter that calls for a costs order in favour of the First Respondent.
The sum of $3,000.00 is an appropriate figure for costs in the circumstances.
The Application will be dismissed with costs, fixed in the sum of $3,000.00.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 2 June 2011
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