SZELX v Minister for Immigration & Anor
[2007] FMCA 209
•15 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZELX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 209 |
| MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – whether applicant has raised an arguable case on the face of his application and affidavit in support – whether in a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 the Court is required to consider more than the applicant’s application or amended application and any evidence filed in support – the constitutional validity of s.474 of the Migration Act 1958 (Cth). |
| Federal Magistrates Court Rules 2001, r.44.12; 44.12(1)(a); 44.13(1); pt.44 div.44.4 Migration Act 1958 (Cth), s.474 |
| Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 |
| Applicant: | SZELX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3235 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 15 February 2007 |
| Date of last submission: | 15 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitor for the Respondent: | Ms S. Hanstein, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3235 of 2006
| SZELX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is a hearing pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 requiring the applicant to satisfy the Court that his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 29 September 2006, raises an arguable case for the relief claimed.
Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 provides that:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application;”
On 7 December 2006, the Court set this proceeding down for a show cause hearing today, pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001.
The proceeding was commenced by way of application filed on 6 November 2006 (“the Application”).
The Application sought the following Orders:
“1. The Court order is not in accordance with law
2. The Court find appropriate law in this matter
3. Cost”
The grounds of the Application are as follows:
“1. The judgment was wrong.
2. The case was supported to included sect 578B of Judiciary Act 1903.
3. My right had breached in accordance with 75 sect of Constitution.”
The Application was accompanied by an affidavit sworn and filed on 6 November 2006. Relevantly, the Application stated the following:
“1. The Court has jurisdiction to consider the application under section 39B of the Judiciary Act 1903.
2. The Refugee Review Tribunal totally failed to take into consideration that the term persecution is not defined by the Convention. The applicant is being feared of persecution if he force to return to Tonga on political opinion.”
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The applicant confirmed that he relied on an amended application filed on 1 December 2006 (“the Amended Application”) and an affidavit filed by him on
1 December 2006 (“the Affidavit”).The Amended Application seeks the following orders:
“1.The Court order was not in accordance with the law.
2. The Court find is appropriate law in this matter.
3. Cost”.
The grounds relied upon in support of the Amended Application are:
“1. The judgment was wrong.
2. The case was supposed to be included sect 578B of the Judiciary Act 1903. My right had been breached in accordance with 75 sect of constitution”
The Affidavit sworn and filed by the applicant on 1 December 2006 is in the following terms:
“The application is to challenge the decision of the Refugee Review Tribunal of the following ground”
1. The Court has jurisdiction to consider the application under section 39B of the Judiciary Act of 1903
2. That section 474 to 476 of Migration Act to remove right of appeal to court totally invalid and unconstitutional
3. The Refugee Review Tribunal totally failed to take into consideration that the term persecution is not deigned by the convention. The applicant is being feared of persecution if he forced to return to Tonga on political opinion”
The applicant made no meaningful submission in seeking to persuade the Court that his Application, his Amended Application or either of his affidavits raised an arguable case for the relief claimed.
The applicant sought to rely on written submissions filed on 29 January 2007. The substance of the applicant's written submissions is essentially a disagreement with the findings and conclusions of the Tribunal to the extent that they are adverse to the claims made by the applicant. The applicant’s written submission also refers to a report that post dates the decision of the Tribunal and therefore cannot be relevant. The applicant’s written submission largely recounts the views of the applicant and plainly seeks to dispute the factual findings made by the Tribunal. The applicant's written submission does not provide any relevant particulars to any of the assertions made by the applicant in the Application, the Amended Application or either of the affidavits.
The first respondent submits that, in considering whether the applicant has raised an arguable case for the relief claimed, the Court’s consideration is confined to the relief sought and the grounds mentioned in the Application, in accordance with r.44.13(1) of the Federal Magistrates Court Rules 2001.
Rule 44.13(1) provides that:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The first respondent submits that consideration of the Court is not bound to include, necessarily, consideration of the Tribunal’s decision. The solicitor for the first respondent stated that, although her written submissions addressed the Tribunal’s decision, in the proceeding before this Court, it was not necessary to have regard to them.
The applicant was given leave to file the Amended Application. In those circumstances, for the purposes of this show cause hearing, the Court will have regard to that document, together with the Affidavit (see paragraphs 10 to 11 above in these Reasons) and the applicant’s written submissions, as well as the applicant’s initiating Application and affidavit filed in support (see paragraphs 6 to 7 above in these Reasons).
The grounds contained in the Application and the Amended Application are bare assertions unsupported by particulars. None of the grounds disclose an error capable of review by this Court in respect of the Tribunal's decision or the conduct of its review.
The paragraphs identified in the applicant's affidavits also made bare assertions unsupported by any further particulars.
Paragraph 2 of the Affidavit (see paragraph 12 above in these Reasons) asserts “that section 474 to 476 of Migration Act to remove right of appeal to court totally invalid and unconstitutional”. The assertion is unsupported by any material or argument that would give rise to the Court considering that the applicant's proceeding involves a matter arising under the Constitution or involving its interpretation. The first respondent referred the Court to Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24, which makes clear the constitutional validity of s.474 of the Migration Act 1958 (Cth) (“the Act”).
Nothing stated by the applicant in the Application, the Amended Application, either of the affidavits or the applicant’s written submissions raises any question that properly requires consideration by this Court of the Tribunal’s decision, if the matter is to be dealt with in accordance with Part 44 Division 44.4 of the Federal Magistrates Court Rules 2001.
In the circumstances, I am not satisfied that the application before the Court has raised an arguable case for the relief claimed by the applicant either in his initiating Application or the Amended Application. In the circumstances, pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001, the proceeding before this Court is dismissed.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs fixed in the amount of $2,500. I note that such application is in accordance with the relevant costs schedule of the Federal Magistrates Court Rules 2001. I note that a copy of that schedule was provided to the applicant at the directions hearing before this Court on 7 December 2006.
ORDERS DELIVERED
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 8 March 2007
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