SZGHY v Minister for Immigration

[2007] FMCA 1083

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1083

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

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

SZBYR v Minister for Immigration [2007] HCA 26

Applicant: SZGHY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1415 of 2007

Judgment of: Driver FM

Hearing date: 9 July 2007

Delivered at: Sydney

Delivered on: 9 July 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr B O'Brien
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1415 of 2007

SZGHY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  Their decision was signed on 12 March 2007 and was handed down on 3 April 2007.  The Tribunal affirmed a decision of a delegate of the minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  He arrived in Australia on 7 October 2004 and applied to the Minister's Department for a protection visa on 14 October 2004.  The Minister's delegate refused to grant that visa on 7 January 2005.  The applicant sought review of that decision before the Tribunal which affirmed the decision.  However, that decision by the Tribunal was set aside by this Court on 1 November 2006.  The decision the subject of this proceeding is the decision of the Tribunal on remittal of the matter from this Court.

2. I made procedural orders in relation to this matter on 31 May 2007.  The applicant consented to orders which gave him the opportunity to file an amended application and affidavit evidence in support of it.  He filed an amended application on 2 July 2007.  That is the application on which he now relies.  He also relies upon an affidavit filed with his original application on 3 May 2007.  I received that affidavit as a submission. 

3. I have before me as evidence the court book filed on 13 June 2007 and two letters sent to the applicant on 13 and 14 June 2007 (exhibits R1 and R2) providing him with copies of the court book.  The applicant denied receipt of the court book but I am satisfied that it was sent to the correct addresses shown on the amended application.  The applicant says that he has been living in Perth since March.  However, he has provided no notice of change of address for service and his amended application filed only seven days ago continues to show his home address as being at Campsie. 

4. The amended application asserts bias, failure to consider the applicant’s claims, having regard to irrelevant country information and a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). I invited the applicant to make oral submissions in support of his application but he declined that opportunity. There is no substance to the grounds of review in the amended application. There is nothing to support the allegation of bias. It is plain from the record of the Tribunal decision that the Tribunal did consider the applicant's claims. The content of that decision is, in some respects, somewhat sloppy. It is apparent that there are proof reading errors on pages 107, 109, 111 and 112 of the court book. However, those errors do not detract from the record of the decision as adequate evidence of consideration of the applicant's claims.

5. It is not clear what the applicant means by referring to the Tribunal having regard to irrelevant country information.  It does not appear to me that country information figured in the Tribunal decision.  Rather, the applicant was simply not believed.  The applicant asserts in his affidavit that the Tribunal's decision was not rational or logical.  However, the findings made by the Tribunal were open to it on the material before it. 

6. Neither does the asserted breach of s.424A of the Migration Act have any substance. It is true that the Tribunal wrote to the applicant on 14 February 2007 in purported compliance with its obligations under s.424A (see court book, page 94 to 97). It is now doubtful that s.424A required that letter to be sent. The High Court has recently clarified the law in relation to inconsistencies between what applicants tell the Tribunal and what they tell the Minister's Department[1].  To the extent that the letter needed to be sent, it adequately identified the significance of the matters referred to in it. 

   [1] SZBYR v Minister for Immigration [2007] HCA 26

7. I find that the applicant has failed to demonstrate an arguable case of jurisdictional error. Neither is any arguable error apparent to me from my own reading of the material. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules2001 (Cth).

8. The application having been dismissed, costs should follow the event.  The Minister seeks costs fixed in the sum of $1,500.  Scale costs in this instance would be $2,500.  The applicant did not wish to be heard on costs.  I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $1,500. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 July 2007