SZIMX v Minister for Immigration and Citizenship [2007] FCA 1110

FEDERAL COURT OF AUSTRALIA

SZIMX v Minister for Immigration and Citizenship [2007] FCA 1110 SZIMX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 698 OF 2007

RYAN J

30 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 698OF 2007

BETWEEN: SZIMX

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J DATE OF ORDER: 30 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The first respondent's costs of the application to this Court be his costs in any application to the Federal Magistrates Court under r 16.05 of the Rules of this Court. In default of any such application being made within 28 days of this day, the applicant pay the first respondent's costs of and incidental to the application dated 20 April 2007, such costs to be taxed in default of agreement. 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 698 OF 2007

BETWEEN: SZIMX

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 30 JULY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application filed on 20 April 2007 for leave to appeal from orders made by Federal Magistrate Raphael on 28 March 2007; see SZIMX v Minister for Immigration and Citizenship [2007] FMCA 584. 2 The application before the learned Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), dated 27 January 2006 and handed down on 16 February 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs as he was then named ("the Minister"), to refuse to grant a protection visa to the application. That refusal occurred on 10 November 2005. 3 By way of background, the applicant is a citizen of Indonesia who arrived in Australia on 13 August 2005. On 6 September 2005 he applied for a protection visa. The applicant claimed to fear persecution from native Indonesians because of his Chinese ethnicity. The applicant also claimed that his home and shop had been looted and burned by native Indonesians and that his family had suffered various difficulties. 4 On 10 November 2005, a delegate of the first respondent refused the application for a protection visa and, on 14 December 2005, the applicant applied to the Tribunal for a review of the delegate's decision. His application was supported by a written statement which was primarily in the same terms as the statement that accompanied his protection visa application. 5 On 22 December 2005 the Tribunal sent a letter by registered post to the applicant advising that it had considered all the material before it but was unable to make a decision in his favour on that information alone and advising him to attend a hearing to be held on 15 January 2006. The applicant failed to appear on the scheduled day and time and, pursuant to s 426A of the Migration Act 1958 (Cth) ("the Act"), the Tribunal made its decision on 27 January 2006 without taking further action to enable the applicant to appear before it. 6 The Tribunal handed down its decision on 16 February 2006 and sent a letter to the applicant on 16 February 2006 notifying him of that decision. The Tribunal did not accept the applicant's claims as it considered them to be unsubstantiated, brief and vague. The Tribunal found that they amounted to mere assertions that could not be tested as the applicant had not attended the hearing on 25 January 2006. The written claims also appeared to the Tribunal to have been borrowed from statements prepared for other applicants raising doubt as to the general credibility of the applicant's claims. Additionally, having regard to country information, the Tribunal was not satisfied that there was a real chance that the applicant would suffer persecution by reason of his Chinese ethnicity if he were to return to Indonesia. 7 On 15 March 2006, the applicant applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal dated 16 February 2006. The application contained three unparticularised grounds of review, that the Tribunal had failed to give the applicant natural justice, that procedures which were required to be observed had not been observed and that the decision had not taken account of the danger to the applicant if he were to return to Indonesia. The application was accompanied by an affidavit sworn by the applicant on 14 March 2006. 8 On 11 April 2006, the applicant attended a directions hearing at which orders were made by a Registrar requiring him to file an amended application by 4 July 2006 and directing that the matter be listed for final hearing on 28 March 2007. The applicant did not file an amended application and failed to attend the hearing before Raphael FM on 28 March 2007. Accordingly, the learned Federal Magistrate ordered that the application be dismissed pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 and that the applicant pay the Minister's costs fixed in the sum of $2750. 9 The applicant has filed an application to this Court for leave to appeal together with an affidavit sworn by himself on 17 April 2007 in support of his application and a draft notice of appeal. In his application for leave to appeal the applicant has also applied for an order that compliance with O 52 r 5(2) be dispensed with. The applicant asserts in his affidavit in support of his application for leave to appeal that; '1. The Tribunal breached the rules of natural justice and/or procedural fairness in connection with the making of the decision. 2. I were not given an opportunity to comment on the information forming the basis of the Tribunal's decision.' 10 The grounds of appeal listed in the draft notice of appeal which accompanied his application for leave to appeal are; '1. The Second Respondent failed to give natural justice