SZGEA v Minister for Immigration - [2007] FMCA 1296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGEA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1296

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Migration Act 1958 (Cth), ss 420, 424A
Federal Magistrates Court Rules 2001 (Cth)

Minister for Immigration v Eshutu (1999) 197 CLR 611

Applicant:

SZGEA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1570 of 2007

Judgment of:

Driver FM

Hearing date:

06 August 2007

Delivered at:

Sydney

Delivered on:

06 August 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J Pinder
DLA Phillips Fox

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1570 of 2007

SZGEA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 28 March 2007 and was handed down on 24 April 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and arrived in Australia on 30 October 2004. She applied to the Minister's department for a protection visa on 11 November 2004. The delegate refused that application on 13 January 2005. The applicant sought review of that decision and the Tribunal affirmed it on 22 March 2005. That decision of the Tribunal was quashed by consent by this Court on 22 November 2006 when the matter was remitted to the Tribunal for re-determination according to law.
The applicant had made claims arising out of a dispute over a water conservation and power station development project which involved flooding her village. The applicant was not invited to a further hearing before the Tribunal, apparently on the basis that a hearing had been conducted by the first Tribunal. Rather, the applicant was invited to comment on information that the Tribunal considered would be a reason, or part of the reason, for affirming the decision under review. That invitation was sent on 31 January 2007 and appears on pages 95 to 98 of the court book.
Essentially, the letter invited comment on apparent conflicts in the applicant's evidence to the Tribunal. The applicant responded by letter dated 21 February 2007. See the court book pages 99 and 100.
The Tribunal referred to the procedural history of the matter, including the s.424A invitation and the applicant's response. In its decision the Tribunal records that it was left unsatisfied as to the truth of the applicant's claims in significant areas, notwithstanding the response to the s.424A invitation. The Tribunal's concerns about the applicant's evidence left it unsatisfied that the events described by her ever took place, or if they did that her role in them was as she described.
In particular, the applicant's inability to name the dam project that was the foundation of her claims, and her inconsistent statements as to her whereabouts prior to coming to Australia seriously undermined her general credibility.
These proceedings began with a show cause application filed on

17 May 2007. In that application the applicant asserted notification of the Tribunal decision on 30 April 2007. I find that the application was filed within time.
The applicant now relies upon an amended application filed on

27 July 2007. That application contains four grounds. The first, accuses the Tribunal of a lack of understanding of the applicant's local area, and reliance upon internet information which was unreliable. However, it is apparent from the Tribunal's findings and reasons that the decision of the Tribunal turned not upon country information but upon the applicant's own evidence.
Ground 2 appears to presuppose the correctness of the first ground by suggesting that the applicant's oral evidence had been rejected because it had not been heard before and was apparently inconsistent with the country information. There is nothing in the Tribunal decision to support that assertion.
The third ground asserts that the Tribunal did not follow s.420 of the Migration Act 1958 (Cth) (“the Migration Act”) which imposes the objective of providing a mechanism of review that is fair, just, economical, informal and quick. That ground must fail at two levels. First, as stated by the High Court in Minister for Immigration v Eshutu (1999) 197 CLR 611, s.420 is merely an exhortative provision and non‑compliance with it does not of itself establish jurisdictional error. Secondly, even if a breach of the section could amount to jurisdictional error, there is nothing to establish that the Tribunal did not act fairly, justly, economically and formally and quickly.
Ground 4 accuses the Tribunal of bias because it did not refer to any independent information. This ground appears to conflict with

ground 1, which accuses the Tribunal of improperly relying upon country information derived from the internet. In any event, there is no evidence to suggest any bias on the part of the Tribunal, whether apprehended or actual.
The original application was accompanied by an affidavit, which I received as a submission. In that affidavit the applicant accuses the Tribunal of erring in finding that there was no plausible evidence to say that the applicant had suffered, or would suffer persecution in her country. The applicant accuses the Tribunal of failing to consider her claims properly.
I reject that contention. The Tribunal was aware of the applicant's claims, appeared to understand them and consider them. Neither was there any actual or constructive failure to consider the applicant's claims. The Tribunal met its obligation to invite the applicant to a hearing prior to the first Tribunal decision, and I am not persuaded on the material before me that a second hearing was required.
The relevant issues about which the Tribunal sought further information were dealt with by way of a letter sent pursuant to s.424A of the Migration Act. The Tribunal met its obligations pursuant to that section. Indeed, it probably went beyond them, possibly due to the absence of the second hearing.
The applicant claimed illness at the start of today's hearing, which commenced one hour late. She said that she had a cold. When I indicated that I did not think that would prevent her from participating in the hearing. She also complained of dizziness. I permitted her to remain seated and advised that I would interrupt the hearing at any time should she need a rest.
Her submissions were read by the interpreter on behalf of the applicant. Apart from blowing her nose occasionally, the applicant did not show any physical signs of illness. I am satisfied that she was able to participate in the hearing.
The oral submissions did not add materially to the grounds of review advanced in the amended application and the affidavit. I find that the applicant has failed to establish an arguable case of jurisdictional error by the Tribunal. Neither is any arguable case of such error apparent to me from my own reading of the material.
Accordingly, I dismiss the application pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,200. Scale costs in this instance would be $2,500. I accept that costs of not less than $2,200 have been reasonably and properly incurred on behalf of the Minister when assessed on a party/party basis. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,200.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 9 August 2007