SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 25

FEDERAL COURT OF AUSTRALIA

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 25 SJSB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 452 of 2003 MANSFIELD J 22 JANUARY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 452 OF 2003

BETWEEN: SJSB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 22 JANUARY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application to quash the decision of the Refugee Review Tribunal made on 6 March 2003 be dismissed. 2. The applicant pay to the respondent costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 452 OF 2003

BETWEEN: SJSB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 22 JANUARY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 6 March 2003. The Tribunal affirmed a decision of a delegate of the respondent of 22 January 2002 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 6 November 2001. 2 Although the application was instituted by solicitors acting on behalf of the applicant, those solicitors have not been instructed to make submissions on behalf of the applicant at the hearing today. He has not otherwise attended. In those circumstances, I propose to deal with the matter on the merits in the absence of the applicant. It is apparent from the affidavit of the solicitor for the applicant filed on 15 January 2004 that he has been made aware of today's hearing and had some communications with his solicitors prior to today's hearing concerning it. 3 The applicant is a national of Sri Lanka who arrived in Australia on 3 March 2001 on a student visa. As noted, he subsequently applied for a protection visa under the Act. To qualify for a protection visa he had to satisfy the decision-maker that he is a person to whom Australia owes protection obligations under the Refugees Convention, as amended by the Refugees Protocol (the Convention): see s 36(2) of the Act. In practical terms that means that the decision-maker had to be satisfied that he is a refugee as defined in Art 1A(2) of the Convention. 4 His claim to be a refugee is set out in the protection visa application. It is in the following terms: 'I am a Sinhalese Buddhist National of Sri Lanka. My father has been a native doctor for the last 30 years. He was attached to a hospital in Puttalam and also treated private patients. Among his patients he had Singhalese and Tamils. In Puttalam area, in the eastern suburbs of Sri Lanka, he treated Tamils and later he was suspected of assisting the LTTE. He was arrested in Colombo, together with me. I will send a detailed statement of claim within three weeks' time.' 5 He proceeded to claim that he would be arrested and tortured by the police if he returns to Sri Lanka because he has been suspected of supporting the LTTE. Despite the intimation of a detailed statement of his claims being forthcoming, he made no further claims to the respondent in support of his application. Before the delegate's decision, the Department of the respondent wrote to him on 28 November 2001 indicating that he should promptly submit any such further material. He did not respond. 6 On the basis, therefore, of that limited information the delegate of the respondent rejected his claim. The Tribunal was required to address his claims anew. It did so. It indicated to him that it was unable to make a decision in his favour on the papers. He nevertheless made no further detailed submissions to the Tribunal. He submitted no further information to it. On 30 January 2003 the Tribunal invited 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. That invitation was made in accordance with s 425(1) of the Act. The applicant did not respond. 7 Section 426A of the Act provides that, in those circumstances and because the applicant did not appear before the Tribunal on the day on which, or at the time and place at which he was scheduled to appear, the Tribunal was entitled to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It proceeded to do so. It said: