SZPZK v Minister for Immigration & Anor [2011] FMCA 419 (2 June 2011)

Last Updated: 3 June 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZPZK v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 419

MIGRATION – Visa – Protection visa – application for review of RRT decision – where applicant did not attend the Tribunal hearing – where applicant did not attend Court.

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

Applicant:

SZPZK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 372 of 2011

Judgment of:

Scarlett FM

Hearing date:

2 June 2011

Date of Last Submission:

2 June 2011

Delivered at:

Sydney

Delivered on:

2 June 2011

REPRESENTATION

Applicant:

No appearance

Solicitors for the Applicant:

No solicitor on the record

Solicitor for the Respondents:

Ms Stone

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

(1) The Application is dismissed under Rule 13.03C of the Federal Magistrates Court Rules 2001.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 372 of 2011

SZPZK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant is a citizen of Indonesia. He is applying to the Court for judicial review of a decision of the Refugee Review Tribunal made on 31st January 2011. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
2. By his Application filed on 4th March 2011, the Applicant asks the Court to make the following orders:
   • (1) A writ of mandamus be issued directing the Refugee Review Tribunal to reconsider the matter according to law.
   • (2) A writ of mandamus be issued directing the Refugee Review Tribunal to determine the matter according to law.

(3) The First Respondent to pay the Applicant’s costs.

3. The Applicant relies on the following grounds of review:
   • (1) The Refugee Review Tribunal took the irrelevant considerations into account in the exercise of the power.
   • (2) The Refugee Review Tribunal breached the rules of natural justice in connection with the making of the decision.
   • (3) The Refugee Review Tribunal breached the rules of procedural fairness in making of the decision.
4. The Minister does not appear to have filed a Response but opposes the orders sought.

Background

5. The Applicant arrived in Australia on 4th August 2008 as the holder of a student visa, valid until 21st July 2010. On 22nd July 2010 he applied for a Protection (Class XA) visa.
6. The Applicant submitted a statement with his application, in which he claimed to have a well founded fear of persecution because of his religion. The statement is somewhat confused in its structure, but the Applicant says:
   • I would like to submit my claims to be a refugee because my religion. In Indonesia people with Muslim religion are discriminated by other people with different religion.
   • ...I was running a small business in Indonesia. I am a Muslim. I am always discriminated by all other people with other religion such as Christian and Buddi and Islam. I was almost killed by people with Islam religion. My internet café was burned down to ashes in 2005. Then I found a job at local bank. But the Islam who burned my business still chased me. I cannot continue my job, so I chose to come to Australia as a student...I cannot go back to Indonesia since I will be killed by Islam people.[1]
7. On 28th September 2010 the Department of Immigration and Citizenship wrote to the Applicant, inviting him to telephone the Department on a particular number to arrange an interview with a Departmental officer.
8. The Applicant did not telephone to arrange an interview.
9. The Department wrote to him on 27th October 2010, notifying him that his application for a Protection visa had been refused.
10. In the Protection (Class XA) Decision Record the Minister’s delegate found that the Applicant was a citizen who was outside his country. However, the delegate noted that the Applicant had not contacted the Department to arrange an interview and stated:
    • Whilst the applicant’s written claims suggest a convention nexus, he did not avail himself of the opportunity to provide supporting evidence of his claims. If interviewed, the applicant would have been required to satisfy the decision maker that he feared harm for a Convention related reason. I therefore cannot be satisfied that he genuinely fears harm for a Convention related reason.
    • I am not satisfied that the applicant has substantiated his claims and therefore find that his claimed fear of persecution is not well founded.[2]

Application for Review by the Refugee Review Tribunal

11. The Applicant applied to the Refugee Review Tribunal for a review of the decision not to grant him a protection visa on 12th November 2010.
12. On 30th November 2010 the Tribunal wrote to the Applicant at the address he had given on his application, informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Applicant was invited to attend a hearing to give evidence and present arguments about the issues arising in his case. The hearing was scheduled for 9:00am on 24th December 2010.[3]
13. On 7th December 2010 the Tribunal received a “Change of Contact Details” form advising that the Applicant had a new postal address for service of correspondence.[4]
14. The Applicant did not attend the hearing on 24th December 2010. The letter of invitation was returned unclaimed to the Tribunal that same day. The Tribunal rescheduled the hearing to 9:00am on 31st January 2011 and wrote to the Applicant, advising him of the rescheduled date.[5]
15. The Applicant did not attend the hearing on 31st January 2011. On that occasion, the Tribunal proceeded to make its decision on the review.
16. In the Tribunal decision Record of 31 January 2011[6] the Tribunal noted that it had issued a fresh Notice of Hearing after having received a notification of a new address, and stated:
    • The applicant did not appear before the Tribunal at 9:00 am on 31 January 2011. In these circumstances, and pursuant to s. 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action too enable the applicant to appear before it.[7]
17. In its Findings and Reasons, the Tribunal stated:
    • Given the lack of details in the applicant’s claims and the lack of opportunity to explore the details in these claims or their veracity, the Tribunal is not satisfied that the applicant faces any harm in Indonesia. As indicated above, he has described an incident in Indonesia in 2005 in which he claims his café was burnt down by Muslims forcing him to work in a bank. He also states that he was almost killed by Muslims but it was unclear whether that was a separate incident to the arson incident or part of the arson incident. He claims that despite losing his business in the fire and working at a bank the Muslims continued to chase him.[8]
18. The Tribunal went to find that the Applicant’s claims were “extremely vague and lacking in detail” and set out a number of matters that it would have wished to explore with the applicant had he attended the hearing.[9]
19. In the absence of that information, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criteria set out in s. 36(2) of the Act.
20. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

Submissions

21. On the first court date, 28th March 2011, the Court made directions by consent that the Applicant would file and serve any affidavit containing additional evidence and any amended application by 2nd May 2011.
22. The Applicant has not filed any affidavit or amended application.
23. Directions were also made by consent that the Applicant was to file and serve written legal submissions and any list of authorities 14 days before the hearing.
24. The Applicant has not filed any written submissions or list of authorities.
25. The Minister’s lawyers filed a written outline of submissions on 25th May 2011.

The Final Hearing

26. The Applicant did not attend Court. The application was listed for hearing at 2:15 pm. The matter was called at 2:20 pm and again at 2:46 pm. There was no appearance by the Applicant or anyone on his behalf.
27. No message has been received from the Applicant or from anyone on his behalf advising that he was hindered, delayed or prevented from attending court due to illness, injury or other emergency.
28. In the circumstances, I have acceded to an application by Ms Stone, who appears for the Minister, to dismiss the Application under the provisions of Rule 13.03C due to the failure of the Applicant to attend Court.
29. The Minister seeks an order for costs in the sum of $3,000.00. This is a suitable matter for a costs order in favour of the Minister. The amount of $3000.00 which is sought is below the figure set by the scale and is an appropriate figure for a costs order.
30. The Application is dismissed with costs.

I certify that the preceding 30Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirtythirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:

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[1] See Court book at pages 28-29
[2] Court Book at page 41
[3] Court Book 59
[4] Court Book 61
[5] Court Book 72
[6] Wrongly dated “31 January 2010”
[7] Court Book 83
[8] Court Book 85
[9] Court Book 86