SZQKF v Minister for Immigration & Anor
[2011] FMCA 566
•21 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQKF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 566 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Indonesia – applicant assisted by an unregistered migration agent – applicant a member of a class of applicants apparently assisted by the same person – applicant failing to attend either the Departmental interview or the Tribunal hearing and supplying few details of his claims – Tribunal unable to be satisfied about his claims – no arguable case of jurisdictional error. PRACTICE AND PROCEDURE – Immediate show cause hearing on the judicial review application. LAW REFORM – Repetition of earlier observations on the need for a more robust onshore protection visa application process. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| SZMEM v Minister for Immigration & Anor [2008] FMCA 1286 SZOCT v Minister for Immigration & Anor [2010] FMCA 425 SZOOW v Minister for Immigration & Anor [2010] FMCA 960 SZOPW v Minister for Immigration & Anor [2011] FMCA 48 SZPAE v Minister for Immigration & Anor [2011] FMCA 413 SZPFZ v Minister for Immigration & Anor [2011] FMCA 417 SZPZG v Minister for Immigration & Anor [2011] FMCA 418 SZPZK v Minister for Immigration & Anor [2011] FMCA 419 |
| Applicant: | SZQKF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1399 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 21 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2011 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr M Alderton Sparke Helmore |
INTERLOCUTORY ORDERS
There be an immediate show cause hearing under rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1399 of 2011
| SZQKF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 1 July 2011 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 May 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Indonesia and arrived in Australia on 31 October 2008. He applied for a protection visa on 30 December 2010. That application was refused by a delegate of the Minister on 23 February 2011 and notified on the same day. The applicant applied to the Tribunal for review on 28 March 2011. The applicant claimed to fear persecution in Indonesia on the basis of his Chinese ethnicity.
I received as evidence for the purposes of today’s hearing the court book filed on 15 July 2011. The court book records at pages 29 and 30 that the applicant was invited to attend an interview at the Minister’s Department by letter dated 25 January 2011. The delegate’s decision (court book “CB” 35-39) records (CB 38) that the applicant did not attend the interview to which he was invited; neither did the applicant indicate any reason why he did not attend that interview. The applicant provided no additional information to the Tribunal with his review application.
By letter dated 27 April 2011 (CB 46-47), the Tribunal validly invited the applicant to attend a hearing on 27 May 2011. The Tribunal hearing attendance record (CB 48) records that the applicant did not attend that hearing. At [30]-[33] of its reasons, (CB 56), the Tribunal dealt with the circumstances of the applicant’s non-attendance:
On 27 April 2011 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 27 May 2011. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
The letter was sent by registered post to the address specified by the applicant in his review application form. The applicant did not respond to the letter nor indicate whether he would attend the hearing.
The applicant did not appear before the Tribunal on 27 May 2011. No explanation for the non-attendance was received by the Tribunal, nor did the Tribunal receive any request that the hearing be rescheduled.
In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review application without taking any further action to enable the applicant to appear before it.
The Tribunal went on to find that it was unable to be satisfied about the applicant’s claims on the scant information he had provided in support of those claims. At [41] of its reasons (CB 57) the Tribunal found that, bearing in mind his failure to prosecute his case, the Tribunal was not satisfied that the applicant has any subjective fear of persecution in Indonesia, let alone a fear which is objectively well-founded.
The show cause application was listed today for directions on its first return date. In his response to the application filed on 6 July 2011, the Minister sought an immediate show cause hearing on the application. The applicant attended today’s hearing. He opposed an immediate show cause hearing on the basis that he wished to stay in Australia and work here. The solicitor for the Minister presented four recent decisions of this Court[1], all dealing with applications in which the applicant was from Indonesia and had failed to attend various hearings, including, significantly, the hearing at which the application was dismissed by this Court. In each of those cases, the applicant had provided to either or all of the Minister’s Department, the Tribunal and this Court, the same address for service. That address is 66/309 Castlereagh Street, Sydney.
[1] SZPAE v Minister for Immigration & Anor [2011] FMCA 413; SZPFZ v Minister for Immigration & Anor [2011] FMCA 417; SZPZG v Minister for Immigration & Anor [2011] FMCA 418; SZPZK v Minister for Immigration & Anor [2011] FMCA 419.
I asked the applicant about the circumstances of the use of that address. He told me that it is a postal address belonging to a Mr Fendi Lim, an Indonesian of Chinese ethnicity. The applicant told me that he had engaged Mr Lim to assist him with his protection visa application. The applicant told me that Mr Lim left Australia about six months ago and returned to Indonesia. However, Mr Lim left the applicant’s affairs in the care of a friend of his whose name the applicant does not know. The applicant has had some telephone communication with that person. He has continued to use the postal address nominated by Mr Lim. He has continued to receive at least some correspondence sent to that address. However, importantly, the applicant could not recall receiving the Department’s invitation to an interview and he was unsure whether or not he had received the Tribunal’s invitation to a hearing. The applicant told me that he has paid Mr Lim, or his associates, approximately $1,000 for the assistance he has received.
A check of the Office of the Migration Agents Registration Authority database undertaken by my associate during the course of the hearing indicates that Mr Lim is not a registered migration agent. It appears that the applicant, and quite possibly a number of other applicants from Indonesia, have placed their affairs in the care of Mr Lim and paid for his services. I understand that the Minister’s Department is investigating those circumstances. The applicant told me, after some hesitation, that he would be willing to co-operate with the Minister’s Department in that investigation. The applicant told me that he wants to stay in Australia because he has had some family problem in Indonesia and wants to work here. He was not able to say anything about the grounds advanced in his show cause application, which are:
1. The decision of the Second Respondent is affected by jurisdictional error.
2. The Second Respondent [applied] a wrong test in making the decision.
3. The Second Respondent’s finding of a number of jurisdictional facts was not reasonable.
In relation to his claim in his supporting affidavit that he would be mistreated if he returned to Indonesia, the applicant said that he did not wish to belittle his country, but he felt that he would be better off in Australia. I asked the applicant about the reasons for his non attendance at the Departmental interview and the Tribunal hearing. The applicant told me that he did not attend the Departmental interview because he was not aware of it. He initially thought that he had received the Tribunal’s invitation to a hearing but then became uncertain. He appears not to have been aware of the Tribunal invitation, and in any event, he accepts that he did not attend and did not provide any explanation for that non attendance.
The applicant accepted my proposition to him that it was his own fault if he did not receive relevant correspondence because he had nominated a postal address of Mr Lim for the purposes of receiving correspondence. If that arrangement did not work properly that was not the fault of the Tribunal or the Minister’s Department. The Tribunal was entitled to exercise its discretion to proceed in the absence of the applicant, pursuant to s.426A of the Migration Act 1958 (Cth). The outcome of the review before the Tribunal was the inevitable consequence of the failure of the applicant to respond to the hearing invitation and to attend the hearing to which he was invited. There is no doubt in my mind that the applicant is unable to advance any arguable case of jurisdictional error by the Tribunal.
Accordingly, the application should be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). I will so order.
This case represents yet another example of the consequences of applicants being permitted to lodge protection visa applications through intermediaries who are not registered migration agents. The abuse of the process of claiming protection in this country brings the system for dealing with asylum claims into disrepute. I have on many occasions recommended that a more robust process should be put in place for the making of onshore claims for protection[2]. I will continue to do so. It is pleasing that the Minister’s department is investigating the circumstances of this applicant and others who appear to be engaged in a common cause or scheme with him. While Mr Lim may no longer be in this country it appears that his business continues to operate here. It will no doubt assist both the applicant and the Minister if the applicant were permitted to remain in Australia for so long as he is willing and able to usefully assist the Minister’s Department in its investigation.
[2] SZOOW v Minister for Immigration & Anor [2010] FMCA 960; SZMEM v Minister for Immigration & Anor [2008] FMCA 1286; SZOCT v Minister for Immigration & Anor [2010] FMCA 425; SZOPW v Minister for Immigration & Anor [2011] FMCA 48
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $1,250. The applicant was concerned to understand fully his obligations in relation to payment of an order for costs but he did not oppose an order. I accept that costs of not less than $1,250 have been reasonably and properly incurred on behalf of the Minister when considered on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,250.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 22 July 2011
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