SZKSJ v Minister for Immigration & Citizenship [2008] FCA 157 (25 February 2008)

SZKSJ v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2296 OF 2007

JACOBSON J
25 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2296 OF 2007

BETWEEN:	SZKSJ Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:	Jacobson J
DATE OF ORDER:	25 February 2008
WHERE MADE:	SYDNEY

2. The appellant is to pay the first respondent’s costs of the appeal, fixed in the amount of $1,200.00.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2296 OF 2007

BETWEEN:	SZKSJ Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	Jacobson J
DATE:	25 February 2008
PLACE:	SYDNEY

1 This is an appeal from orders made by Turner FM, on 9 November 2007. His Honour dismissed an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal, dated 5 April 2007. The Tribunal affirmed a decision of the Minister not to grant the appellant a protection visa.

2 The appellant is a citizen of Indonesia who arrived in Australia on 8 December 2006. He claimed in his protection visa application to have a well-founded fear of persecution in Indonesia because terrorists were pursuing him as a result of his refusal to accept a job with them. The appellant believes that the authorities in Indonesia cannot protect him.

3 The appellant is an ethnic Balinese whose religion is Hindu. His claim was made upon the limited basis that I have referred to above.

4 The appellant was invited to give oral evidence before the Tribunal at a hearing to be held on 4 April 2007. The appellant informed the Tribunal that he wanted to give oral evidence, but he did not attend the hearing. The Tribunal proceeded to deal with the matter, pursuant to s 426A of the Migration Act 1958 (Cth), without taking any further action to enable the appellant to appear before it.

5 The Tribunal gave very short reasons for its decision to affirm the decision of the delegate. The Tribunal recorded the appellant’s claimed fear, but said that it had a number of issues upon which it required a good deal of more detailed evidence from the appellant. It gave, as examples of these issues, threats which were said to have been made by the appellant by terrorists and what were said to be unsuccessful attempts to seek protection in respect of those threats.

6 The Tribunal said that in the absence of evidence on those issues, it could not be satisfied that the appellant had a well-founded fear of persecution on his return to Indonesia.

7 The appellant raised three grounds of review in his application in the Federal Magistrates Court. These were listed in [5] of the reasons for judgment of Turner FM. The essence of the Federal Magistrate’s reasons for dismissing the application was that the Tribunal was empowered to make the decision, which it did, by reason of the appellant’s failure to appear to give evidence at the Tribunal hearing.

8 The other grounds of review were said to be either a claim for a review on the merits, which is not part of the function of the Court, or alternatively, a claim that the Tribunal had a duty to consider the current position in Indonesia. His Honour observed that that was not part of the duty of the decision-maker.

9 The Notice of Appeal is stated in very general terms. In [2] of the Notice, the appellant says that the Tribunal failed to consider that he faces a risk of being killed by terrorists if he goes back to Indonesia.

10 The appellant appeared before me this afternoon without legal representation. He was assisted by an interpreter. He told me that he fears persecution if he returns to Indonesia because he is a citizen of Bali. He says that there are people in Indonesia who would like to destroy him as well as the island of Bali. He points to the situation which has existed in Bali following the Bali bombings.

11 I accept the submission on behalf of the Minister that the Notice of Appeal does not in its terms raise any arguable ground of appeal. Nonetheless, I propose to deal with the submissions that have been put to me this afternoon by the appellant. These submissions must be rejected for two reasons.

12 First, it seems to me that the ground argued by the appellant does not accord with the terms of the appellant’s protection visa application. The claims which he made appear on pp 19 to 21 of the Appeal Book in [40], [41], [42] and [43] of the protection visa application. They were the terms in which the appellant claimed to have a well-founded fear of persecution. The Tribunal dealt with the claim on that basis; so too, did the Federal Magistrate on the application for review in the Federal Magistrates Court.

13 In my opinion, it was not open to the appellant to raise new matters on the appeal, but in any event, the short answer to his submissions is that he failed to appear before the Tribunal in response to the invitation which was extended to him. The Tribunal said, in clear terms, that there were issues upon which it required more detailed evidence. The dismissal of the application by the Tribunal was in accordance with decisions of this Court, which have said that a failure to attend before the Tribunal makes it virtually inevitable that the decision-maker will be unable to reach the requisite state of satisfaction and that the application will therefore be dismissed.

14 The second reason why the appellant’s submission cannot be sustained follows from this: the Federal Magistrate dealt with the matter upon the basis of the claimed fear of persecution, which was made in the protection visa application, and upon the reasons given by the Tribunal for dismissing the application.

15 I can see no error in the approach that was taken by the Federal Magistrate. Accordingly, I will order that the appeal be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

The Appellant was self-represented.

Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	25 February 2008

Date of Judgment:	25 February 2008

Federal Court of Australia

SZKSJ v Minister for Immigration & Citizenship [2008] FCA 157 (25 February 2008)