SZQTQ v Minister for Immigration

[2012] FMCA 201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQTQ v  MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 201

MIGRATION – Review of decision of Refugee Review Tribunal – no appearance by or on behalf of the applicant at the final hearing – no appearance at the scheduled Tribunal hearing – application has no or no reasonable prospects of success – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 425, 426A
Federal Magistrates Court Rules 2001 (Cth), r.13.03C

Abebe v The Commonwealth (1999) 197 CLR 510

Applicant: SZQTQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2394 of 2011

Judgment of: Emmett FM

Hearing date: 15 March 2012

Date of Last Submission: 15 March 2012

Delivered at: Sydney

Delivered on: 15 March 2012

REPRESENTATION

No appearance by or on behalf of the applicant

Counsel for the Respondent: Ian Temby

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 20 October 2011, is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s hearing.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,000.

3. The first respondent is directed to provide to the applicant a copy of these Orders together with a copy of r.16.05 of the Federal Magistrates Court Rules 2001 (Cth).

NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

NOTE B: A copy of a letter from the first respondent’s solicitor, dated 8 March 2012 and addressed to the applicant at the applicant’s address for service, is Exhibit 1R.

NOTE C: The bundle of relevant documents identified as “the Court Book” and filed on 5 December 2011 was tendered by the first respondent and marked Exhibit 2R.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2394 of 2011

SZQTQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 20 October 2011, be dismissed by reason of the failure of the applicant to attend today’s final hearing.

2. The applicant attended a directions hearing before me on 23 November 2011, at which time he was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon together with all evidence, by way of affidavit, by 21 December 2011. The applicant was also directed to file and serve written submissions by 1 March 2012. 

3. The applicant elected to participate in the Court’s RRT Legal Advice Scheme, and received free legal advice in accordance with that scheme on 10 December 2011. 

4. At the directions hearing on 23 November 2011, the applicant was also provided with the contact details of legal service providers and translating and interpreting services in documents headed in Indonesian. There has been no document filed by or on behalf of the applicant either in accordance with those directions or otherwise. 

5. There has been no communication received by the Court or by the solicitor for the first respondent from the applicant seeking an adjournment of today’s hearing.

6. At the directions hearing on 23 November 2011, the matter was set down for hearing today at 10.15am. It is now 10.54am. The matter has been called outside on three occasions. 

7. The solicitor for the first respondent, Mr Temby, tendered in support of the application for dismissal of the applicant’s application, a letter dated 8 March 2012, addressed to the applicant at the applicant’s address for service as disclosed on the initiating application. That letter is marked Exhibit 1R. Exhibit 1R enclosed the first respondent’s written submissions and advised the applicant of the address and time of today’s hearing, and informed the applicant that if the applicant did not appear, that the first respondent may apply to have the matter dismissed pursuant to r.13.03C(1)(c) of the Rules.

8. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and, for whatever reason, has chosen not to attend. 

9. The grounds of the applicant’s application are as follows:

   “1. The First Respondent did not comply with its obligations in accordance with the Migration Act 1958.

   2. The Second Respondent made the decision without considering the real situation in Indonesia.

   3. The Second Respondent has ignored relevant considerations in making the decision.”

10. The bundle of relevant documents identified as the “Court Book”, and filed on 5 December 2011, was tendered by the first respondent and marked Exhibit 2R. Exhibit 2R makes clear that the applicant was invited by the Refugee Review Tribunal (“the Tribunal”) on 28 June 2011 to come to a hearing to give evidence and present arguments relating to the issues arising in the applicant’s case. The letter informed the applicant that the Tribunal had considered the material before it, but it was unable to make a favourable decision on that information alone. The letter also informed the applicant that if he failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it. The letter was addressed to the applicant at the address identified by the applicant in the application for review lodged on 2 June 2011. 

11. The only claims made by the applicant in support of the protection visa application were those contained in the application for a protection visa itself, filed on 7 January 2011. 

12. The applicant was invited but failed to attend an interview before a delegate of the first respondent, and did not lodge any other material in support of the application. The delegate was not satisfied on the material before it that the applicant met the criteria for being a refugee as required by s.36 of the Migration Act 1958 (Cth) (“the Act”). Accordingly, the delegate refused the applicant a protection visa.

13. The Tribunal summarised the applicant’s claims and noted that the applicant had failed to attend a Tribunal hearing on 31 August 2011, and to which he had been invited to attend on 28 June 2011. The Tribunal noted that it did not receive any response to the invitation, that the applicant was not represented by a migration agent, and that he had not provided a telephone or facsimile contact number in his application for review. 

14. Whilst the invitation must be sent in accordance with s.425 of the Act, which includes a requirement that the letter be sent within three days of its date, I note that there is no complaint by the applicant that there was any failure by the Tribunal to comply with the relevant statutory requirements.

15. I also note, curiously, that the letter of invitation, dated 28 June 2011, bares a registered post mark on it, under which is a handwritten note, “sent 28/04/11 cp”. That would appear clearly to be the wrong date, however, in the light of the fact that there is no other complaint about the Tribunal’s compliance with s.425 of the Act, I am prepared to accept that the letter of invitation sent on 28 June 2011 was sent in accordance with s.425 of the Act and all its requirements.

16. In the circumstances, and considering the absence of the applicant to appear at the scheduled hearing, the Tribunal exercised its discretion under s.426A of the Act to decide to make its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal found the applicant’s claims to be brief and vague and was unable to be satisfied about the claims. The Tribunal found that having regard to the insufficient information and lack of detail it was not satisfied that there was a real chance that the applicant would face the harm claimed from government officials or members of the local populace in the future, for reasons of her Hindu religion, or that there had been any systematic and discriminatory withholding of protection in Indonesia.

17. The Tribunal concluded that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention and, in the circumstances, was not satisfied that the applicant met the criteria for being a refugee. 

18. It is for the applicant to satisfy the decision-maker, in this case the Tribunal, that he met the criteria for being a refugee (see Abebe v The Commonwealth (1999) 197 CLR 510 at [187]). As stated above, s.65 of the Act mandates that in the event that the decision-maker is not so satisfied, the applicant must be refused a protection visa.

19. In this case, the Tribunal was not satisfied that the applicant met the criteria for being a refugee.  In the circumstances, the applicant was not entitled to a protection visa. 

20. Whilst I make no final decision as to whether or not the decision of the Tribunal is affected by jurisdictional error, there is no such error apparent on the face of the Tribunal’s decision record. In the circumstances, the applicant has no, or no reasonable, prospects of success in respect of his application for judicial review filed on 20 October 2011. 

21. Accordingly, the first respondent’s application is appropriate and the proceeding, commenced by way of application filed on 20 October 2011, should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  23 March 2012