SZTAY v Minister for Immigration

[2013] FCCA 1681

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1681

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.425, 426A

Applicant: SZTAY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1575 of 2013

Judgment of: Judge Driver

Hearing date: 22 October 2013

Delivered at: Sydney

Delivered on: 22 October 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R Baird

Clayton Utz

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1575 of 2013

SZTAY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 13 June 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from India.  He applied to the Minister’s Department for the protection visa on 20 September 2012.  The delegate refused that application on 15 January 2013, and the applicant applied to the Tribunal for a review of that decision.  By letter dated 26 April 2013, the Tribunal advised the applicant that it was unable to make a favourable decision on the papers, and invited him to attend a hearing on 12 June 2013.  The applicant accepted that invitation, but failed to attend the hearing.  He had not sought any postponement or advised the Tribunal of any difficulty.  The Tribunal decided to proceed in his absence.

3. The Tribunal found that the applicant’s claims were so brief and vague that the Tribunal was unable to establish the relevant facts.  In short, there was insufficient information before the Tribunal to enable it to be satisfied of the applicant’s assertions.  The Tribunal found that it was not satisfied, on the limited material before it, that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.  Neither was the Tribunal satisfied that the applicant was a person to whom Australia owed complementary protection obligations.

4. These proceedings began with a show cause application filed on 11 July 2013.  The applicant now relies upon an amended application filed on 5 September 2013.  The grounds in that application are:

   1. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

   2. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act.  In such circumstances the Tribunal erred in that:

   (a) it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.

   3. The Tribunal has failed to investigate applicant’s claims, specially the grounds of persecution in India.  Therefore, the Tribunal’s decision dated 13 June 2013 was [a]ffected by actual bias constituting judicial error.

   Therefore the applicant submit that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India.

   Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant claims.

5. I have before me as evidence the court book filed on 15 August 2013. 

6. There is no substance to the grounds advanced in the amended application.  There is nothing to support the contention that the Tribunal did not make its decision in accordance with the Migration Act 1958 (Cth) (Migration Act). Neither was there any factual basis upon which the Tribunal could have afforded the applicant the benefit of the doubt. There was nothing before the Tribunal necessitating some further investigation. Neither was there anything before the Tribunal to enable it to favourably assess the applicant’s future risk of harm.

7. In his oral submissions, the applicant told me from the bar table that, at the time of the Tribunal hearing, he was upset over the death of a person in India who had been assisting him.  He overlooked the Tribunal hearing.  He conceded that he did not contact the Tribunal prior to receiving notification of its decision. 

8. The Tribunal met its obligation under s.425 of the Migration Act to invite the applicant to attend the hearing. There is no arguable case of any miscarriage of the Tribunal’s discretion under s.426A of the Migration Act to proceed without a further hearing invitation. The applicant appears to have expected a further invitation. However, in the absence of the Tribunal being put on notice of some issue or problem, there was nothing for the Tribunal to consider in that regard.

9. I conclude that the applicant has failed to advance any arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed in accordance with rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

10. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not oppose an order for costs. 

11. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  24 October 2013