SZQLX v Minister for Immigration & Anor [2011] FMCA 939 (28 November 2011)

Last Updated: 5 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQLX v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 939

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Indonesia – applicant failing to attend hearings to which she was invited, with the consequence that the Tribunal could not be satisfied about her claims – applicant failing to attend court hearing – dismissed for non appearance.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.36

SZQKF v Minister for Immigration & Anor [2011] FMCA 566

Applicant:

SZQLX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1583 of 2011

Judgment of:

Driver FM

Hearing date:

28 November 2011

Delivered at:

Sydney

Delivered on:

28 November 2011

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Mr I Temby Minter Ellison

INTERLOCUTORY ORDERS:

(1) The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
(3) The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the first applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1583 of 2011

SZQLX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 13 June 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Indonesia and had made general claims of persecution, apparently on account of religion. The following statement of background facts relating to the applicant’s circumstances and protection visa claims is derived from the Minister’s written submissions dated 22 November 2011.
2. On 11 February 2011, the applicant arrived in Australia from Indonesia[1].
3. On 4 March 2011, the applicant applied to the Minister’s Department for a protection (Class XA) visa[2]. She stated in that application that:
   • I am a Hindu and because of that, I was beaten and tortured in Indonesia by Muslims ... The Muslims in my hometown want to be the only religion there, so they threat or kill people who have other religions. I was one of them who was beaten nearly to death. The Muslims threaten me that if I do not change me religion, they will kill me. I came to Australia to seek protection from danger. I will be killed if I go back to Indonesia.
4. The applicant gave as her postal address, “66/309 Castlereagh St, Sydney, NSW, 2000” (applicant's nominated address)[3].
5. On 24 March 2011, a delegate of the Minister wrote to the applicant at the applicant's Nominated Address, inviting her to attend an interview with an officer of the Department[4]. The letter requested the applicant to contact the Department to arrange the interview. The applicant did not contact the Department to arrange an interview, or to advise there was a reason why she was unable to attend an interview[5].
6. On 11 April 2011, a delegate of the Minister refused the applicant's application for a protection visa[6]. Notice of that decision was sent by post to the applicant's nominated address[7]. The delegate found that[8]:
   • As the applicant did not arrange to attend an interview, and her claims are so brief and lacking in detail, I am unable to test her assertions. As such, I am unable to be satisfied as to the veracity of her claims.
7. On 11 May 2011, the applicant sought review of the delegate's decision by the Tribunal[9]. The applicant listed as her address for service the applicant's nominated address[10].
8. On 20 May 2011, the Tribunal wrote to the applicant at the applicant's nominated address, inviting her to attend a hearing at 10.00am on
   20 June 2011, at level 11, 83 Clarence Street, Sydney, “to give evidence and present arguments relating to the issues arising in your case”[11]. The Tribunal advised the applicant that[12]:
   • The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.
9. The Tribunal’s letter also advised the applicant that “if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it”[13]. Despite this, the applicant did not appear at the hearing before the Tribunal on 20 June 2011[14].
10. On 23 June 2011, the Tribunal decided to affirm the delegate's decision not to grant the applicant a protection (Class XA) visa[15]. The Tribunal notified the applicant of that decision by letter dated 23 June 2011, sent by post to the applicant's nominated address[16].
11. The Tribunal summarised the claim the applicant had made in her protection visa application[17], but found that:
    1. the “applicant's claims as presented to the Department were not sufficiently detailed to enable the Tribunal to be satisfied that she has suffered persecution in the past or that she faces a real chance of persecution for a convention reason”[18];
    2. accordingly, the Tribunal was “not satisfied that the applicant has a well-founded fear of persecution for a Convention reason ... [and] ... Accordingly, the Tribunal is not satisfied that she is a refugee under the Refugees Convention”[19]; and
    100. therefore, the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth).
12. The application before the Court was filed on 26 July 2011. The grounds in the application are:
    • 1. The Tribunal failed to provide the applicant a proper opportunity to respond to information.
    • 2. The Tribunal failed to consider properly specific [independent] information in relation to her claim.
    • 3. The Tribunal failed to consider whether the Applicant faces a real chance of persecution in Indonesia.
13. I gave directions in this matter on 16 August 2011. On that occasion the applicant appeared in person with the assistance of an Indonesian interpreter. I made a number of directions, including providing the applicant with the opportunity to file and serve an amended application and additional evidence. Nothing further has been filed by on behalf of the applicant.
14. In view of the extreme generality of the grounds in the application as filed, I listed the matter for a hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). Noting that the applicant had not attended either the interview before the Minister’s Department to which she was invited or the hearing before the Tribunal to which she was invited, I took the opportunity at the directions hearing to counsel the applicant on the importance of her attending the court hearing in the matter today.
15. The applicant has not appeared for today’s hearing. There is no explanation for her non-appearance. The matter has been called twice. Regrettably, there appears to be a common feature of this class of applicants from Indonesia not appearing at hearings to which they are invited[20]. There also is a common feature of applicants using a postal address that appears to be associated with an unregistered migration agent[21]. Those circumstances are, I understand, being investigated by the Minister’s Department[22].
16. I am told by the Minister’s solicitor that the applicant was reminded by letter of today’s show cause hearing. The Minister’s solicitor’s office has had no contact with the applicant since that letter. I have concluded in the circumstances that the appropriate course is to dismiss the application on account of the applicant’s non-attendance and I will so order.
17. As to costs, in consequence of the dismissal of the application, the Minister seeks costs in accordance with the court scale. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
18. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the first applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 30 November 2011

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[1] court book “CB” 3, 4
[2] CB 1
[3] CB 2
[4] CB 27
[5] CB 45
[6] CB 29
[7] CB 29
[8] CB 46
[9] CB 47
[10] CB 49
[11] CB 60
[12] CB 60
[13] CB 60
[14] CB 68
[15] CB 72
[16] CB 71
[17] CB 75, [22]
[18] CB 76, [30]
[19] CB 77, [35]
[20] SZQKF v Minister for Immigration & Anor [2011] FMCA 566 at [5]
[21] op cit at [5]-[7] and [11]
[22] It is appropriate for that investigation to proceed to a conclusion. In my view, that conclusion should be that protection visa applicants providing as the applicant’s address, an address associated with an unregistered migration agent, should not be accepted. The unquestioning acceptance of such applications promotes abuse of the protection visa processing system, and, at worst, criminal activity.