SZOWY v Minister for Immigration & Anor [2011] FMCA 209 (25 March 2011)

Federal Magistrates Court of Australia

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SZOWY v Minister for Immigration & Anor [2011] FMCA 209 (25 March 2011)

Last Updated: 4 April 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWY v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 209

MIGRATION – RRT decision – Indian claiming persecution – declined hearing before Tribunal – no arguable jurisdictional error in Tribunal’s procedures and reasoning – application dismissed at show-cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), s.425

SZIMG v Minister for Immigration & Citizenship [2008] FCA 368; (2008) 167 FCR 362 SZIMG v Minister for Immigration & Citizenship [2008] HCASL 437

Applicant:

SZOWY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2810 of 2010

Judgment of:

Smith FM

Hearing date:

25 March 2011

Delivered at:

Sydney

Delivered on:

25 March 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms K Whittemore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
(2) The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2810 of 2010

SZOWY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant came to Australia as a student in either 2007 (according to him) or 2008 (according to the records of the Department). His student visas expired in June 2010, and he remained in Australia. On 30 July 2010 he filed a protection visa application without apparent assistance. His statement attached to the visa application set out claims to fear persecution if he returned to his country of nationality, India.
2. The applicant claimed that he had a fear of being killed by members of the Khalistan Movement due to his membership of, and activities in, Hindu political parties in the Punjab.
3. No corroboration of his claims was provided with his visa application, and the applicant did not attend an interview with the delegate to which he was invited.
4. The delegate made a decision on 22 September 2010 refusing the visa application. The delegate noted a number of matters which he had wished to discuss with the applicant in the proposed interview. These included the similarity of expression of his claims with those of other people, which led him to question their veracity. The delegate said he also wanted to discuss the applicant’s return visit to India after first coming to Australia, his delay in lodging a protection visa application, and relocation within India. The delegate concluded:
   • As the applicant did not attend the interview it is not possible to be satisfied that the claims that have been made in his written application are true claims and that the applicant is deserving of protection.
5. The applicant received the delegate’s decision, and lodged an application for review which did not appoint an agent or authorised recipient.
6. On 25 October 2010, the Tribunal sent to the applicant an invitation to appear at a hearing on 30 November 2010. The invitation told the applicant that “the Tribunal has considered the material before it but is unable to make a favourable decision on this information alone”. The letter requested that the applicant “read and complete the enclosed ‘Response to Hearing Invitation’ form to confirm the hearing”.
7. The applicant did return that form, and he ticked a box with “No” appearing at the end of the following part:
   • Who will take part in the Tribunal hearing?
   • Please note that if any review applicant selects ‘No” in response to the following question, the Tribunal may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before it.
   • Will you take part in the Tribunal hearing scheduled for
     30 November 2010? (Please indicate ‘Yes’ or ‘No’ for each review applicant.)
   • Yes No (the applicant’s name)
8. The Tribunal then made a decision on 24 November 2010 without waiting until the appointed hearing date.
9. In its decision, the Tribunal referred to the applicant’s claims and his response to the hearing invitation. It said:
   • Given that the Tribunal has invited the applicant to appear before it but he has declined, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
10. Section 425 provides:
    • 425 Tribunal must invite applicant to appear
    • (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
    • (2) Subsection (1) does not apply if:
      • (a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
      • (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
      • (c) subsection 424C(1) or (2) applies to the applicant.
    • (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
11. Under s.425 it is now well established that where an applicant gives a consent within s.425(2)(b), even after receiving an invitation to an appointed hearing, the Tribunal is entitled to act upon that consent by determining the matter on the papers without waiting until the hearing date (see SZIMG & Minister for Immigration & Citizenship [2008] FCA 368; (2008) 167 FCR 362 at [19] to [22]). Rares J judgment which contains a clear ruling to this effect, and is binding on this Court, was the subject of a special leave application to the High Court (see SZIMG v Minister for Immigration & Citizenship [2008] HCASL 437). When refusing leave, Hayne and Crennan JJ said:
    • There is no reason to doubt the correctness of his Honour’s decision that the applicant’s appeal to the Federal Court should be dismissed.
12. In the present case, the Tribunal’s form of ‘response to hearing invitation’ differs from that which I have seen in previous years, and which was addressed in SZIMG. In particular, it no longer is framed in terms of consent to the Tribunal making a decision without a hearing. However, in my opinion, the relevant part of the form as completed by the applicant, in effect, conveys his consent to the Tribunal proceeding to make a decision without his appearing at hearing. The contrary has not been asserted by the applicant in his application and submissions to this Court.
13. The applicant’s recent amended application confirms that he “decided that since I have given my evidence by way of claim it may not necessary for any interview”, and he confirmed today that he had understood that he had requested the Tribunal to decide the matter on the papers only.
14. Under the heading “Findings and Reasons” the Tribunal reached a conclusion which it expressed as follows:
    • The claims before the Tribunal are lacking in essential detail. While the applicant stated that his name is on a list stating that he shall be killed, there is no information about when this occurred or why he cannot relocate to another party of India. The applicant was invited to appear before the Tribunal but declined to do so. As a consequence, the Tribunal has been unable to question him further as to the veracity of his claims, leaving his claims unclarified and the Tribunal’s questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution for reasons of race, religion, nationality, or because of his membership of a particular social group or political opinion if he returns to India in the foreseeable future

The Tribunal therefore affirmed the decision of the delegate.

15. The applicant now seeks orders setting aside the Tribunal’s decision, and remitting the matter for further consideration. His application was adjourned at a First Court Date to allow him an opportunity to take advice and consider the contents of the court book. He declined to participate in the free legal advice scheme. His application was listed today to allow the Court to consider whether he has raised an arguable case for the relief claimed, and he was warned that his application might be dismissed if he had not raised such a case.
16. The grounds of his original application are:
    • 1. That the respondent RRT, only reproduced the evidence of the applicant, but failed to address the evidence placed by the applicant. There is a miscarriage of justice while only reproducing the evidence of the applicant, and no legal reason was advanced by the RRT. This is the violation of the legal process as given under the law.
    • 2. That the most important issues were not discussed but on the contrary the decision given by the respondents was upheld, which is against the spirit of section which empowers this honourable court under section 477 of the Migration Act, this has caused the legal error as given under the law.
    • 3. That the applicant has got a very good case for arguments, the errors committed by the respondents requires the interference of this Court.
17. I am unable to find an arguable ground of jurisdictional error raised by these grounds.
18. There is no substance to the assertion that the Tribunal ‘failed to address the evidence placed by the applicant’. It manifestly identified that evidence, consisting only of his visa application statement. It considered whether it was satisfied by that statement and, for reasons which in my opinion were clearly open to it, decided that it was not satisfied by its assertions.
19. I do not consider that any of the arguments presented in the application identify an arguable jurisdictional error affecting that reasoning.
20. Nor, in my opinion, does the contents of an amended application which was filed on 17 March 2010. This repeats the applicant’s refugee claims and makes the same contentions as are in the application, although at greater length.
21. It also implicitly invites the Court itself to determine whether the applicant is a refugee and whether his claims should be accepted. However, it is not the function of the Court under the Migration Act to do that. I explained this to the applicant when today his oral submissions made the same invitation.
22. Taking into account all that has been put by the applicant in writing and today, I am not satisfied that he has raised an arguable case for the relief sought in his application. I consider it is appropriate to dismiss the matter under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 1 April 2011