SZHSY v Minister for Immigration
[2007] FMCA 387
•19 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHSY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 387 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – judicial review application dismissed with costs on account of the applicant’s non appearance – application to set aside those orders – no sufficient explanation for the applicant’s non attendance and no serious issue to be tried. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 476 |
| Minister for Immigration v NAMW [2004] FCAFC 264 QAAC of 2004 v RRT [2005] FCAFC 92 VJAF v Minister for Immigration [2005] FCAFC 178 WAJW v Minister for Immigration [2004] FCAFC 330 |
| Applicant: | SZHSY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3546 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 19 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The reinstatement application filed on 13 March 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the reinstatement application, fixed in the sum of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3546 of 2005
| SZHSY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an interlocutory application seeking the reinstatement of a judicial review application. The judicial review application was dismissed on 12 March 2007 when the applicant failed to appear. The reinstatement application was filed the following day. It is supported by a short affidavit by the applicant. There is a covering affidavit by Joanne Dow who translated the applicant’s affidavit into the English language.
The applicant’s affidavit indicates that he was aware that his hearing had been rescheduled to 12 March 2007. However, he remembered the wrong date. He thought his hearing was on 13 March 2007. He seeks the opportunity for a further hearing. The applicant was cross‑examined on his affidavit. He appeared to me to be, essentially, a frank and honest witness. He acknowledged receipt of correspondence from the Court and the Minister’s solicitors informing him of the hearing on 12 March 2007. The letters were tendered as exhibits. The applicant acknowledged receipt of at least two of the three letters that were sent. He agreed that the letters were not confusing and that they stated that the hearing was to be on 12 March. He said that the letters had been read to him in the Chinese language but he did not make any note of the hearing date. He said that he simply got the date mixed up in his mind. He also said at one point that he had been working on 12 March.
Based upon the applicant’s evidence, which I accept, it is clear that his failure to attend court on 12 March 2007 was his own fault. He simply made a mistake and seeks to be relieved of the consequences of that mistake. That is, in my view, an insufficient reason for the Court to vacate its dismissal order. Even if I were wrong in that view the judicial review application does not raise a serious question to be tried. The issues in relation to the judicial review application are dealt with in the Minister’s outline of legal submissions filed on 15 February 2007. I agree with those submissions and adopt with necessary amendments paragraphs 1 to 9 of them for the purposes of this judgment:
By an application filed on 2 December 2005 under rule 44.05 of the Federal Magistrates Court Rules 2001 (Cth) the applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth)(“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 November 2005 and handed down on 28 November 2005.
The Tribunal had affirmed an earlier decision of a delegate of the first respondent refusing to grant the applicant a protection visa. The applicant also filed affidavit evidence in support of the application for an order to show cause on 2 December 2005.
Applicant’s claims and Tribunal’s findings
The applicant, a citizen of the People’s Republic of China (PRC), claimed to fear persecution on the basis of his “political opinion”. The applicant claimed to have led a political demonstration in 1989 and was detained for four days by the local police. In 1998, the applicant became a Falun Gong practitioner who helped his aunt distribute pamphlets promoting Falun Gong. In 2002, he was stopped by police, taken into custody and physically and mentally tortured.[1]
The Tribunal referred to extensive independent country information and found the applicant’s claims to be, “wildly lacking in historical accuracy, plausibility, consistency and credibility”. The Tribunal also found that the applicant had left the PRC legally and was therefore satisfied that the authorities had no relevant concerns about him. Accordingly, the Tribunal was not satisfied that the applicant faced a real chance of persecution in the PRC.[2]
Amended application
On 24 May 2006, the applicant filed an amended application which is formulaic and in a form that is a familiar precedent to the Court.
The amended application essentially raises one ground of review. It alleges that the Tribunal breached s.424A of the Act, in relation to information contained in the applicant’s protection visa application. Although the applicant does not identify which information the Tribunal is said to have relied upon, it is clear that the Tribunal did not in fact rely on any information in the applicant’s protection visa application in making its decision.
The Tribunal's reasons for affirming the decision under review were essentially two-fold. First, the applicant had departed China legally and was therefore not of concern to the authorities. The applicant gave evidence at the Tribunal hearing that he departed the PRC legally.[3] The applicant also provided a copy of his passport at the Tribunal hearing. [4] The information as to how the applicant departed the PRC therefore falls within the s.424A(3)(b) exception.
Secondly, the applicant's claims were “wildly lacking in historical accuracy, plausibility, consistency and credibility”. It is clear that the Tribunal found the applicant’s evidence at the Tribunal hearing internally contradictory.[5] The applicant’s evidence to the Tribunal falls within s.424A(3)(b) of the Act. The Tribunal also informed the applicant of its concerns about his evidence.[6]
The Tribunal also found the applicant’s evidence to be inconsistent with independent country information.[7] The independent country information relied upon was “just about a class of persons”, and therefore fell within s.424A(3)(a) of the Act.[8] Accordingly, there is no information upon which the Tribunal relied that would enliven s.424A(1).
[1] Court book filed 6 January 2006 (CB) 19
[2] CB 60
[3] CB 59.9
[4] Affidavit of Nicola Johnson sworn 11 January 2007, annexure “A”, pp 3-8
[5] CB 50.9
[6] CB 50.9
[7] CB 51.2-59.9
[8] Minister for Immigration v NAMW [2004] FCAFC 264 at [66] – [71] per Beaumont J, at [138] per Merkel and Hely JJ; WAJW v Minister for Immigration [2004] FCAFC 330 at [44-46], QAAC of 2004 v RRT [2005] FCAFC 92 at [7-30] and VJAF v Minister for Immigration [2005] FCAFC 178 at [11-16].
As noted above, the only issue raised in the principal application is whether the Tribunal breached s.424A of the Migration Act. I asked the applicant during argument today what information the Tribunal failed to disclose to him that it should have. He could not identify any. Neither could he identify any other legal issue that the Court needed to consider. However, in his submissions in reply he read from a prepared statement which he said a friend had prepared for him. That statement again asserted a breach of s.424A of the Migration Act. The particulars of the breach in the statement were that the Tribunal failed to disclose to the applicant its reasons for rejecting his review application. As I indicated to the applicant, that assertion indicates confusion about what s.424A requires. Section 424A imposes an obligation of disclosure in certain circumstances before a decision by the Tribunal, not after it. In any event, the Tribunal’s reasons for its decision are clearly set out in the record of the Tribunal’s decision appearing in the court book from page 46.
There was nothing other than information provided by the applicant to the Tribunal leading up to the Tribunal decision on which the decision turned. Accordingly, no issue of disclosure under s.424A arises.
The applicant’s prepared statement also asserts prejudice. However, there is no evidence before me to support an accusation of bias, whether actual or apprehended. I reject that contention.
I find that the applicant has failed to establish sufficient cause for the reinstatement of his judicial review application.
Accordingly, I dismiss the reinstatement application filed on 13 March 2007.
Costs should follow the event. The Minister seeks an order for costs in respect of the reinstatement application of $500. The applicant did not wish to be heard on costs. I accept that costs of not less than $500 have been properly and reasonably incurred on behalf of the Minister in relation to the reinstatement application. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to that application, fixed in the sum of $500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 March 2007
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