SZQOO v Minister for Immigration

[2011] FMCA 963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQOO v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 963

MIGRATION – Review of decision of the Refugee Review Tribunal – application dismissed for non-appearance.

Migration Act 1958 (Cth), ss.36, 65, 476
Federal Magistrates Court Rules 2001 (Cth), r.13.03C

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225

Applicant: SZQOO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1866 of 2011

Judgment of: Nicholls FM

Hearing date: 14 October 2011

Date of Last Submission: 14 October 2011

Delivered at: Sydney

Delivered on: 14 October 2011

REPRESENTATION

The Applicant: No Appearance

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed on 23 August 2011 is dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1866 of 2011

SZQOO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 23 August 2011, under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 July 2011, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Indonesia. From the material before the Court by way of the Court Book (“CB”) filed in these proceedings, he claimed to have been a person of Muslim religion, and in that light claimed religious persecution in Indonesia.

The Delegate

1. The applicant was invited to an interview before the delegate (CB 28 to CB 29). He did not attend. No explanation was proffered. His application was refused on the basis that the delegate could not reach the requisite level of satisfaction on the bare claims made by the applicant (CB 37).

The Tribunal

1. He then applied for review to the Tribunal (CB 39 to CB 42). He was invited to a hearing (CB 45). Again he did not attend (CB 47). The Tribunal reasoned that it was not able to reach the requisite level of satisfaction in circumstances where the applicant was put on notice that it could not make a favourable decision, and provided him with the opportunity to come to a hearing to expand and provide arguments and evidence in support of his claims, and he did not do so.

2. The Tribunal also noted that “country” information available to it presented the relevantly interesting fact that Indonesia, of all countries in the world, has the largest population of Muslims and is, indeed, a majority Muslim country, yet the applicant claimed persecution on the basis of his Muslim religion.

3. In any event, the Tribunal refused the application on the basis of being unable to reach the requisite level of satisfaction such that the visa must be granted (ss.65 and 36(2). See also SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225) ([41] at CB 58 to [42] at CB 59).

Before the Court

1. The applicant made his application to the Court on 23 August 2011. He attended at the first Court date on 7 September 2011. The applicant was assisted on that day by an interpreter in the Indonesian language. Amongst other orders, I made an order that the matter be set down for hearing today, 14 October 2011, at 2.15pm in this Court. I note also that the applicant was given the opportunity to provide evidence and written submissions. Nothing further has been provided by the applicant in that regard.

2. To assist the applicant, he was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. The certificate by that panel member, available to the Court, reveals that the applicant was invited to attend a meeting with that lawyer assigned to him. But again, without reason proffered, he did not attend.

3. In any event, the Minister has now asked that the application be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules) in circumstances where the applicant has failed to attend at the hearing. The affidavit of Ms E Baggett of 13 October 2011 was read into evidence.

Consideration

1. In considering that application, I take into account first that the applicant did attend at the first Court date and was put on notice, with an interpreter in the Indonesian language present, for the hearing today. Second, he was sent by the Court a copy of the orders made on that day. Third, I take into account the matters set out in the affidavit of Ms Baggett.

2. On all that material, I am satisfied that the applicant had reasonable notice of the matter today: the time, date and place. When the matter was first called there was no appearance by the applicant. I adjourned for 20 minutes in case the applicant had been detained by some travel difficulty or for some other reason. When the matter resumed at 2.35pm there was still no appearance by the applicant. Nothing has been heard from the applicant by way of seeking an adjournment, or by way of communicating any difficulty with attending today or, indeed, that he attempted to come to Court but has been delayed in some way.

3. In all the circumstances therefore, having reached that level of satisfaction, it is appropriate that the matter be dismissed pursuant to r.13.03C(1)(c) of the Rules.

4. I note in this regard that this is not the first case that I have had this year of an Indonesian national making claims for a protection visa who then did not attend the delegate’s interview, did not attend the Tribunal hearing, attended at the first Court date, but then did not attend at the final hearing before the Court. It is to be lamented that there are persons who come to this country with, from what it appears, the barest of claims, who are not prepared to take any action whatsoever to prosecute those claims before the authorities, and then before the Court, with the waste to the Australian taxpayer that that ensues.

5. For this case, I am going to make an order dismissing the application for non-appearance.

Costs

1. The Minister, not surprisingly, as is usual in cases that have taken this course of events, seeks to recover some of the costs that have been incurred in responding to the application. In this case, the Minister has asked for costs fixed in the amount of $3,500.

2. First, it is appropriate that a costs order be made in this matter. Nothing has been put by the applicant, who has chosen not to attend for whatever reason, to prosecute his case. As I have noted, he has taken no steps whatsoever to prosecute his claims either before the Tribunal, or claims of legal error on the part of the Tribunal before this Court. There is nothing that I can see in the circumstances that would argue against the making of such an order. I will therefore make the order.

3. I note that the test here is what is reasonable in the circumstances. I note from the Court’s file, from the work that has been done by the Minister’s solicitors, the filing of multiple copies of the Court Book, formal Response, filing of Notice of Appearance, communications with the applicant, written submissions and, indeed, the attendance of a solicitor on two occasions now before the Court, that the amount sought is a reasonable amount, and I will make the order in the amount sought.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  16 December 2011