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MIGRATION - Application for review of Refugee Review Tribunal - refusal of a Protection (Class XA) visa - application dismissed pursuant to Rules 13.03(2)(b) and 13.10(a) of the Federal Magistrates Court Rules 2001.

SZDCV v Minister for Immigration [2004] FMCA 664 (29 September 2004)

SZDCV v Minister for Immigration [2004] FMCA 664 (29 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCV v MINISTER FOR IMMIGRATION
[2004] FMCA 664



MIGRATION - Application for review of Refugee Review Tribunal - refusal of a Protection (Class XA) visa - application dismissed pursuant to Rules 13.03(2)(b) and 13.10(a) of the Federal Magistrates Court Rules 2001.



Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth), ss.36(2), 474

Federal Magistrates Court Rules 2001, Rule 13.03A(c)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Applicant:
SZDCV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SYG871 of 2004



Delivered on:


29 September 2004



Delivered at:


Sydney



Hearing date:


29 September 2004



Judgment of:


Lloyd-Jones FM



REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr M Wigney



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the application be dismissed pursuant to rules 13.03(2)(b) and 13.10(a) of the Federal Magistrates Court Rules 2001.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SYG871 of 2004

SZDCV


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This ex tempore judgment relates to the principal application for relief, being an application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) ("the Act"), to review a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 12 March 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is a citizen of Indonesia and applied for a protection visa on the basis of asserted discrimination in Indonesia as a member of the ethnic Chinese minority. The application asserted that the discrimination she had suffered in Indonesia amounted to persecution.

The history

3. The applicant, a citizen of Indonesia, arrived in Australia on 3 January 1997. She applied for a Protection Visa (866) on 27 March 1997.

4. The basis of the applicant's claim to entitlement to a protection visa is unclear and has shifted over time. Her initial claims were set out in answer to questions in the visa application form and appeared to relate to fears arising from her husband's political activities. When subsequently questioned by a delegate of the respondent, the applicant appeared to suggest that her reasons for leaving Indonesia and wanting to stay in Australia were private and personal and related to her separation from her husband and a desire to start a new life in Australia.

5. On 14 May 1997 the applicant applied to the Tribunal for a review of the delegate's decision. On 7 August 1998 the Tribunal affirmed the delegate's decision by refusing the applicant's visa application. This decision of the Tribunal was the subject of proceedings in the High Court. On 17 April 2003 Gummow J made orders, by consent, the effect of which were to quash the Tribunal's decision and require the Tribunal to determine the applicant's application for review of the delegate's decision according to law.

6. The matter came before a differently constituted Tribunal and a hearing was convened on 13 February 2004. The applicant gave oral evidence at the hearing.

7. On 12 March 2004 the Tribunal handed down its decision affirming the decision of the delegate refusing the applicant's visa application.

The Tribunal's decision and reasoning

8. The bases of the Tribunal's decision to affirm the delegate's decision were factual findings made by the Tribunal in relation to the applicant's claimed fear of returning to Indonesia. In particular, the Tribunal made the following factual findings:

a) the applicant had not been subjected to any harm amounting to Convention persecution during her life in Indonesia;

b) there was no evidence to indicate that she would be harmed for any Convention reasons (i.e. for reasons of her race, religion, nationality, membership of a particular social group or political opinion) should she return to Indonesia;

c) the Tribunal did not accept any of the applicant's claims in relation to her husband and his political connections (as being a basis for her fear of returning to Indonesia); and

d) to the extent that the applicant claimed that she feared persecution on return to Indonesia for reasons of her Chinese ethnicity and Christian faith, the evidence showed that the recent past in Indonesia had not been characterised by attacks on persons of Chinese ethnicity and Christian faith (a fact that the applicant agreed with) and accordingly there was no real chance that the applicant would be persecuted for reasons of her ethnicity or religion now or in the foreseeable future should she return to Indonesia.

9. As a result of these factual findings, the Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and that therefore she did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The application for review of the Tribunal's decision

10. The applicant filed an application in relation to the Tribunal's decision on 24 March 2004. The application contained no proper grounds or particulars of the legal basis upon which the Court could grant any relief in relation to the Tribunal's decision.

11. The grounds of the applicant's application are:

a) I doubt if the decision from DIMIA nor RRT to refused my protection application was correct because I believe I met the 4 keys element from the protocol:

i) I'm outside of my home country.

ii) I have well founded fear of being persecuted the reason I believe the have a systematic planning against the Chinese they want to using a Chinese to become political victim so the fear is real and not a subjective but the objective because the fact and the experience (I will tell more details in Affidavit).

iii) My fear because of my race this cannot be change except have to change some of positive and still take time to be better.

iv) The Indonesia Government they can't protect us if some Authority they don't involved to make a trouble that's good enough. The reality not always the same with the News.

12. Consent orders were made on 18 May 2004 which required the applicant to file and serve an amended application and any evidence upon which she proposed to rely on or before 30 July 2004. The matter was listed for further directions on 25 January 2005. That hearing date was subsequently changed to today. It is clear that an amended application was required if the applicant was to put substance into her application.

13. However, the applicant did not file any amended application as required by the consent order. The applicant was originally represented by Solicitors, but on 3 September 2004 they completed a Notice to Cease to Act. This Notice and an affidavit of Edmund Kin Chuen Teng were filed in the Registry on that day. The affidavit stated:

a) I have ceased acting on behalf of the applicant on 3 September 2004.

b) A copy of the letter of Edmund Teng & Associates Lawyers dated 16 August 2004 advising the applicant is annexed hereto and marked with the letter "A".

c) The address of service on the applicant is: 2 Randwick Street, Marrickville, NSW, 2204 being the last known address of the applicant.

The law

14. Rule 13.03 of the Federal Magistrates Court Rules 2001 permits me to end a proceeding where a party fails to take a step required by the rules or to comply with an order of the Court. The power is available to me at the Court's own motion or on the motion of another party.

Submissions

15. The Counsel for the respondent submitted that the applicant had not demonstrated that the Tribunal's decision involved any error which would justify intervention by this Court, let alone a jurisdictional error in light of s.474 of the Act, or a contravention of any of the conditions under R v Hickman; Ex parte Fox and Clinton.

16. It was also submitted that the Tribunal's reasons clearly showed that it had considered the applicant's visa application and all of the evidence and other material put forward by her, correctly addressed the relevant visa criteria and relevant law and reached a state of non-satisfaction concerning the criteria. The Tribunal's non-satisfaction concerning the relevant criteria, it was further submitted by the respondent Counsel, was based entirely on factual findings made by it in relation to the applicant's claimed fear of returning to Indonesia. These factual findings and the Tribunal's ultimate finding in relation to the relevant criteria were open to it on the evidence and materials before it.

17. The grounds or particulars set out in the application did nothing more than contend that the application met the relevant visa criteria and that the Tribunal's decision was not correct. It was submitted by the respondent Counsel that that amounted to nothing more than an attack on the merits of the Tribunal's decision. The Court has no jurisdiction to entertain an application made on that basis.

Conclusion

18. Having regard to the Court Book and the principal application itself, it is clear to me that the application, as framed, is hopeless. If this application were to proceed to a hearing, it would necessarily fail.

19. I conclude that the application should be dismissed for the following reasons: default of compliance with the order of the Federal Magistrates Court requiring the filing of an amended application and because the principal application discloses no reasonable cause of action.

20. I am satisfied, in the circumstances, that it would be appropriate to dismiss the application pursuant to the Federal Magistrates Court Rules 2001.

21. I order the application be dismissed pursuant to rules 13.03(2)(b) and 13.10(a).

22. I order the applicant pay the Minister's costs and disbursements of and incidental to the application.

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

Associate: Menna McMullan

Date: 29 September 2004
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