MZXGP v Minister for Immigration

[2006] FMCA 358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXGP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 358

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of judicial review application at the first court date on the basis that no arguable case is or could be advanced.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Applicant: MZXGP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 131 of 2006

Judgment of: Hartnett FM

Hearing date: 2 March 2006

Delivered at: Melbourne

Delivered on: 2 March 2006

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Jayasinghe

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 27 January 2006 is dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules.

2. The applicant pay the first respondent's costs fixed in the sum of $1000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 131 of 2006

MZXGP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

Respondents

REASONS FOR JUDGMENT

Reasons

1. Before the Court is an application for judicial review filed on

   
   

   27 January 2006.  Judicial review is sought of a decision made by the Refugee Review Tribunal (the Tribunal) on the 6 December 2005 in Sydney wherein the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa.  The applicant was notified of the decision on 3 January 2006.  In support of the application is an affidavit sworn by the applicant on the 25 January 2006.  The applicant annexes a copy of the decision record and otherwise deposes as follows:

   “I did not happy with the decision of the RRT because they failed to consider my claims in accordance with the refugee law and the decision was made with error of law.

   The RRT did not follow the natural justice process and refuse my application.  I request the court to return my case to RRT to reconsider my case by a different member of the Tribunal.”

2. By response filed 9 February 20065 the first respondent opposes the application on the grounds that the Tribunal considered the claims and evidence put by the applicant; did not breach any common law or statutory principles of natural justice and further, and in the alternative, the Tribunal decision is not affected by jurisdictional error.  The first respondent seeks a dismissal of the application without a final hearing asserting the applicant is merely seeking merits review.

3. The applicant attended in person this day. He was assisted by an interpreter. I invited the applicant to put forward oral argument in this show cause hearing noting that if he was unable to raise an arguable case for the relief as claimed by him, this application may be dismissed pursuant to Rule 44.12 and without a final hearing. I explained that this was because on my reading of his application and the Tribunal decision it appeared no arguable case could be demonstrated.

4. The applicant addressed the Court in oral argument.  He was unable to elaborate on his claim that the Tribunal decision contained an error of law and that the Tribunal did not consider his claims and the evidence in support of them.  Further, that the Tribunal committed a breach of natural justice.  His affidavit material likewise contained no facts in support of such claims.

5. The Tribunal considered each and every of the claims as put before it by the applicant (who gave oral evidence on 22 November 2005) and as contained in the department’s file; the material referred to in the delegate’s decision; and other material available to it from a range of sources.  It made findings of fact open to it on the evidence before it.  It put matters relevant to the decision to the applicant asking him for comment including in relation to country information before the Tribunal.  The Tribunal put to the applicant evidence which appeared to contradict his claims to afford the applicant an opportunity to respond.  It found the applicant to be “entirely lacking in credibility.”

6. In my view, the applicant’s application disclosed no arguable case and nor did his oral argument.  Further, I conclude that no arguable case could be adduced by or on behalf of the applicant.  I will make an interlocutory order dismissing the application and costs will follow the event.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:  T. Jones

Date:  2 March 2006