SZGST v Minister for Immigration
[2006] FMCA 1908
•12 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGST v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1908 |
| MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – show cause hearing pursuant to r.44.12 of Federal Magistrates Court Rules 2001 – whether applicant has an arguable case. |
| Migration Act 1958 (Cth), ss.65; 425; 425A(1); 441A Federal Magistrates Court Rules 2001, r.44.12; sch.1 |
| Applicant: | SZGST |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3117 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 December 2006 |
| Date of last submission: | 12 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms A. Radich, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3117 of 2006
| SZGST |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks an order that the applicant's proceeding commenced by way of application filed on 25 October 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 September 2006 be dismissed in accordance with r.44.12 of the Federal Magistrates Court Rules 2001, on the basis that the application does not raise an arguable case.
The application identifies the following grounds:
“1. The decision of the Refugee Review Tribunal be set aside.
2. A decision that we met the refugee criteria.
3. Costs.”
In an affidavit filed in support of the application, the applicant stated:
“1. I do not wish to go back to China.
2. The decision of Refugee Review Tribunal be attached.”
The matter came before the Court on the first occasion on 6 December 2006. The first respondent filed a response on 4 December 2006, stating that the application ought to be dismissed with costs because it does not disclose a jurisdictional error by the second respondent. Because the applicant had not been notified by the first respondent that such an order may be sought on the occasion of the first court date, the first respondent's application for a r.44.12 hearing was set down for this afternoon. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any evidence by way of affidavit to be relied upon, by 11 December 2006.
No further document has been filed by the applicant or on his behalf in respect of the application. Certainly, the grounds of the application contain no particulars and disclose no error capable of review.
The Tribunal noted that, on 19 July 2006, it posted to the last address for service provided to the Tribunal by the applicant in connection with a review, an invitation to attend a hearing in accordance with ss.425A(1) and 441A of the Migration Act 1958 (Cth) (“the Act”).
The invitation letter informed the applicant that the Tribunal was unable to make a decision in his favour on the material before it and that, accordingly, he was invited to come to a hearing at the Tribunal to give oral evidence and present arguments in support of his claims on 25 August 2006.
The Tribunal noted that, on 11 August 2006, the Tribunal received from the applicant a completed ‘Response to Hearing Invitation’ form advising that he wished to come to a hearing. The Tribunal stated that the applicant had not contacted the Tribunal to explain his failure to attend.
The Tribunal found that it had discharged its obligation under s.425 of the Act to give the applicant an opportunity to appear before it to give evidence and therefore proceeded to make a decision on the basis of the material before it. The Tribunal then identified the claims made by the applicant in support of his protection visa application and noted that, whilst the applicant claimed that he feared persecution because of his involvement in practising Falun Dafa or Falun Gong, his claims were vague and lacking in detail.
The Tribunal observed that the applicant's claims amounted to little more than a series of bald assertions which required further explanation. On the evidence before it, the Tribunal was unable to be satisfied that the applicant is a practitioner of Falun Gong or that he suffered mistreatment as a result of being a practitioner of Falun Gong. The Tribunal identified various matters of concern that it would wish to have explored with the applicant at a hearing and concluded that it was unable to be satisfied, on the evidence before it, that the applicant has a well founded fear of persecution for Convention reason, if he were to return to China.
The Tribunal concluded that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. In such circumstances, s.65 of the Act mandates that a decision maker, such as the Tribunal, where it is not satisfied that the criteria for being a refugee is met, then the decision maker must refuse a protection visa application.
There was nothing on the face of the Tribunal's decision to suggest any error in the approach of the Tribunal to the conduct of its review and the conclusions that it made would appear to be open to it on the material before it.
The applicant is unrepresented before the Court this afternoon, although has the assistance of an interpreter. The applicant stated that he did not attend the hearing because he had injured his hand and had it stitched in hospital. However, there is no evidence provided to this Court by the applicant to support such an assertion, despite a direction made on 6 December 2006 that the applicant file and serve evidence in support of his application. Certainly, the applicant's application does not disclose any such complaint. The Tribunal stated that there was no contact received by the applicant to explain his failure to attend. In the circumstances, there is nothing before me to suggest that the decision of the Tribunal to proceed with its review, without taking any further steps to enable the applicant to appear before it, was other than in accordance with the proper exercise of its discretion.
In the circumstances, the application does not raise an arguable case. Accordingly, the proceeding before this Court, commenced by way of application filed on 25 October 2006, is dismissed.
RECORDED : NOT TRANSCRIBED
In the circumstances, the first respondent seeks costs fixed in an amount of $2500. I note the amount sought is in accordance with Sch.1 Pt.2 r.1(b) being the applicable rule of the Federal Magistrates Court Rules 2001.
ORDERS DELIVERED
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 20 December 2006
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