SZEJK v Minister for Immigration and Citizenship
[2008] FCA 327
•3 March 2008
FEDERAL COURT OF AUSTRALIA
SZEJK v Minister for Immigration and Citizenship
[2008] FCA 327SZEJK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2286 OF 2007RARES J
3 MARCH 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2286 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZEJK
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
3 MARCH 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs.
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 2286 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZEJK
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
3 MARCH 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This is an appeal from a decision of the Federal Magistrates Court: SZEJK v Minister for Immigration [2007] FMCA 1987. The trial judge refused the appellant’s application for constitutional writ relief against the decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister not to grant him a protection visa.
The appellant claimed that he was entitled to a protection visa because he was a Christian practicing his religion in China underground, and secondly, because he delivered bibles in China. He claimed that his activities were the subject of persecutory treatment by the Chinese authorities. He claimed that a number of the members of the group with which he had been associated in delivering bibles had been arrested by the Chinese Public Security Bureau Police in early 2004, and that the police had told his wife that he was suspected of transporting and delivering illegal religious materials, including bibles. He claimed that the police asked his wife to disclose his whereabouts, and that following this, he had hidden before procuring a false passport which he later used to leave China.
The tribunal found that it was not satisfied that the appellant was a Christian, or had any particular interest in Christianity. It was not satisfied that he delivered bibles in China. In its findings and reasons, the tribunal discussed why it did not accept the appellant’s version of events, the subject of his claims. It pointed to independent country information, which was generally inconsistent with the appellant’s claims concerning his alleged involvement in transporting bibles in China. The tribunal found that it did not accept that the Chinese authorities ever had, or currently had, any intention of arresting him on suspicion of having any illegal involvement in the distribution of bibles. The tribunal found that it was not satisfied that the Chinese authorities would have refused to issue the appellant a passport in his own name, had he applied for one, because of his claimed religious activities.
In conclusion, the tribunal was satisfied, and found, that the appellant did not have a well-founded fear of being persecuted in China for reasons of his religion or any other Convention reason.
The application in the Federal Magistrates Court advanced two grounds on which the relief was sought. First, the appellant argued that the tribunal had committed a jurisdictional error by failing to comply with s 424A of the Migration Act 1958 (Cth), because it failed to give him particulars of information, in writing, which it considered was the reason, or part of the reason, for affirming the decision under review, to ensure he understood why the information was relevant to the review and to invite him to comment on it. Secondly, he claimed that the tribunal had failed to comply with its obligations under the Act to accord him procedural fairness.
The trial judge carefully reviewed those claims and rejected them. He said that there were no particulars of any failure to comply with s 424A. I agree with his Honour’s reasons for rejecting this ground. Secondly, his Honour noted that, again, there was a failure to particularise the basis on which the appellant claimed that he had not been accorded procedural fairness by the tribunal in accordance with the Act. The trial judge held that he was unable to find any ground on which it could be said that the tribunal had fallen into jurisdictional error and dismissed the application. Having independently reviewed the appeal papers and his Honour’s reasons, I am unable to see any error in his Honour’s reasoning.
The appellant’s grounds of appeal to this court assert, simply, that the tribunal committed legal errors and did not comply with the Act, again, in a completely unparticularised way. The appellant told me today that the assessment by the tribunal amounted to it not believing what he had said. I agree with that submission, but it demonstrates that the tribunal was acting on the basis of its determination of the merits of the appellant’s claims without in any way falling into a jurisdictional error.
Accordingly, I am of opinion that there is no basis upon which it is possible to find that the tribunal committed a jurisdictional error, entitling the appellant to constitutional writ relief. The appeal should, therefore, be dismissed.
APPLICATION FOR COSTS FIXED IN A SUM PURSUANT TO O 62 R 4(2)(C)
The Minister initially sought a fixed sum costs order for the payment of $4500. That included an amount of counsel’s fees of $1575, inclusive of GST, and an unparticularised assertion that the solicitor’s work undertaken included perusing the appellant’s notice of appeal, appearing, filing and serving a notice of appearance, appeal book and the Minister’s outline of submissions, perusing the sealed directions from the court, preparing a brief to counsel, and attendance at the hearing today.
My attention was directed to the current Sch 2 of the Federal Court Rules relating to costs, applicable from 1 August 2006. In respect of short form bills under the Act, items 43D to 43H, set out lump sums for solicitor’s costs. The Minister referred to the item 43D, which provides:
‘Short form amount, including costs and disbursements, that may be claimed by a party in a standard migration case: $4,965.’
He submitted that the claim for $4,500 was, therefore, below the amount in the schedule and, of course, the latter excluded the counsel’s fees.
Despite Practice Note 27 (issued by the Chief Justice on 18 February this year) the affidavit in support of the application does not indicate how the gross sum claimed has been arrived at, other than providing a copy of counsel’s memorandum of fees (which appear to me to be within a reasonable range). There is no particularisation of the hours of work or involvement of the solicitor or the charge-out rates agreed to by the Minister so as to enable me to assess whether the amount claimed is reasonable.
In my opinion, this case could not possibly have engaged the solicitors acting for the Minister in such an extensive and significant amount of work which would justify an order for costs in the sum claimed. In the past, on the application of parties without affidavits, I have assessed the amounts to be awarded as fixed costs under O 62 r 4(2)(c). I have some familiarity with the amounts claimed on such applications particularly in migration appeals when counsel was briefed, and, like this appeal, when no particularly significant issues of fact or law arose. In such cases generally amounts in the order of between $2,000 and $3,500 were sought and allowed for appeals that could take no more than an hour or so to hear. In my opinion, there is no occasion in this appeal to fix a sum as substantial as $4,500, inclusive of counsel’s fees.
I reject the application under O 62 r 4(2)(c).
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 13 March 2008
Appellant: Appeared in person Counsel for the First Respondent: MP Cleary Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 3 March 2008 Date of Judgment: 3 March 2008
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