BRGAG of 2008 v Minister for Immigration and Citizenship

DECISION OF JARRETT FM 12 The appellant filed an application for review of the decision of the Tribunal with the Federal Magistrates Court on 18 March 2008. The appellant listed the following grounds of application: 1. I really fear returning to Indonesia because I supported our former president Mr Suharto [sic]. 2. The Tribunal failed to consider I was ever put into jail when I was in Indonesia. 3. The Tribunal member did not fully consider that my fear is well-founded. 13 In dismissing the application of the appellant his Honour made the following comments in his reasons for judgment: · it is not the Tribunal's role to play the contradictor: SZGFG v Minister for Immigration and Citizenship [2007] FCA 483; · although proceedings before the Tribunal are inquisitorial as opposed to adversarial, the Tribunal must be fair. It is for the appellant to advance its case using the evidence and argument it wishes to advance; · where the Tribunal clearly indicated to the appellant it was unable to make a favourable decision without a hearing and the appellant does not attend the hearing, there is not really any other decision the Tribunal can reach but to affirm the decision of the delegate; · the Tribunal was open to adopt the procedure it adopted in the circumstances. The Tribunal met the required conditions before proceeding in the appellant's absence and no error can be established by the Tribunal: SZGGG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 528; Bin Xiev v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172; · having sent an invitation or notice to appear, if the appellant fails to attend, it is inevitable that the application will be refused: SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201 at [19]; NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119.

HEARING BEFORE THIS COURT 14 On 10 June 2008 the appellant filed a Notice of Appeal in this Court raising the following three grounds of appeal: 1. The Tribunal failed to consider the relevant information of my claims. 2. The Tribunal does not fully consider my current situation. 3. The Tribunal failed to consider the likely chance of being jailed if I go back to Indonesia. 15 The appellant has sought the following orders: 1. The orders of the Federal Magistrates Court dated 14 February 2007 should be quashed. 2. There be an order requiring the Second Respondent reconsider the applicant's claims according to law. 16 At the hearing of the appeal before me, the appellant was self-represented and did not file written submissions. The first respondent was represented in Court by Mr Maycock, having previously filed written submissions on 13 November 2008. 17 Through the interpreter, the appellant submitted in summary: · he was traumatized at the thought of returning to Indonesia; · because of his activities in Indonesia, as a result of which he was regarded as opposing the new Indonesian government, he was under close observation and had limited opportunities to, for example, join organisations; · he has not been able to obtain proof of his relationship with the previous Indonesian government but was endeavouring to do so. 18 Mr Maycock for the first respondent was content to rely on his written submissions.

CONSIDERATION 19 The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. In this case I do not consider that the appellant has established either jurisdictional error in the decision of the Tribunal, or appellable error in the decision of the learned Federal Magistrate. 20 In relation to the first ground of appeal it is clear from the decision record of the Tribunal that the Tribunal did consider the appellant's claims and whether the appellant had a well founded fear of persecution. As the appellant did not attend the Tribunal hearing or submit any further material the Tribunal was unable to consider further information. It is not for the Tribunal to make a case for the appellant - rather it is for the applicant before the Tribunal to make his or her case for consideration by the Tribunal. 21 In relation to the second ground of appeal I consider that there is little to distinguish this ground from the first ground of appeal to the extent that the appellant submits that the Tribunal did not give proper consideration to his case. I have nothing to add to my conclusion in relation to the first ground of appeal. 22 In relation to the third ground of appeal, his Honour noted that the Tribunal considered the claims of the appellant relating to being beaten by police, imprisoned for one month and the possibility of further prosecution, and that the Tribunal found that these claims were unsubstantiated. As the appellant did not attend the Tribunal hearing, the Tribunal was unable to consider any additional facts relating to the assertions of the appellant. To the extent that the appellant seeks to re-agitate the facts before the Tribunal, this is not the role of the Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. 23 I do not consider the grounds of appeal substantiated. In my view the appropriate order is that the appeal be dismissed, with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate: Dated: 18 November 2008 The Appellant appeared in person.

Solicitor for the First Respondent: Mr S Maycock of Clayton Utz

Solicitor for the Second Respondent: The Second Respondents did not appear