SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FMCA 41
•19 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHTI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 41 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious persecution in China – applicants asserting breach of ss.424A and 425 of the Migration Act 1958 (Cth) – no arguable case – application dismissed summarily. PRACTICE AND PROCEDURE – Consideration of the circumstances where it is appropriate to conduct an immediate show cause hearing at a first court date. COSTS – Consideration of the application of the scale of costs in relation to migration proceedings where a show cause hearing is conducted at the first court date. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425, 426A |
| SZBCS v Minister for Immigration [2005] FCA 1457 |
First Applicant: Second Applicant: | SZHTI SZHTJ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3567 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 19 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 January 2006 |
REPRESENTATION
| The Applicants appeared in person |
| Solicitors for the Respondent: | Mr A Carter Sparke Helmore |
INTERLOCUTORY ORDERS
The Court directs that the names of the applicants are not to appear on the transcript of proceedings.
Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3567 of 2005
| SZHTI |
First Applicant
SZHTJ
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 6 December 2005 to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 1 November 2005 and the applicants assert that they were notified of it on 10 November 2005. On that basis I find that the judicial review application was filed within time. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.
The applicants are from China and have made claims of religious persecution based upon their Catholic faith. The applicants are a husband and wife. They arrived in Australia on 12 February 2005. On 24 March 2005 they lodged protection visa applications with the Minister's Department. The relevant claims were made by the first applicant (the applicant husband). On 28 June 2005 a delegate of the Minister refused the protection visa applications. The applicants applied for review by the RRT of that decision. The applicants did not attend a hearing before the RRT.
On page 4 of the decision (court book, page 62) the presiding member states that on 12 September 2005 the RRT wrote to the first applicant at the address advised on his “Application for Review” form as his residential address. That was the address that he had nominated as the address to which correspondence should be sent (see court book, page 50). The presiding member notes that the first applicant was invited to give oral evidence and present arguments at a hearing on 10 October 2005. He was advised that if he did not attend the hearing and a postponement was not granted the RRT might make a decision on his case without further notice. It appears from the court book (pages 52 and 53) that a hearing invitation was indeed sent to the first applicant. The presiding member notes that no response to the invitation was received and neither was the letter returned to the RRT. No one else was authorised by the first applicant to act and receive communications on his behalf and accordingly no other line of inquiry was possible. In the circumstances the RRT elected to proceed to make a decision pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”).
The presiding member proceeded then to find that the applicants had provided insufficient information to enable a favourable decision to be made. That is hardly surprising as the first applicant was already on notice in the hearing invitation that the RRT was unable to make a decision in his favour on the information he had provided. It appears that the only information in support of the protection visa claims was that contained in the original protection visa application.
The application for judicial review raises two grounds. The first is an asserted breach of s.424A(1) of the Migration Act. The particulars are that the RRT states in its decision record that the first applicant did not provide much if any details on how he practised his Roman Catholic faith. The applicants assert that the RRT should have provided an opportunity to comment on that information. The second ground of review is an asserted breach of s.425(1) of the Migration Act. The particulars are that the applicants assert that they did not receive their hearing invitation.
I confirmed with the applicants today that these were the grounds upon which they wish to rely. The applicants had failed to comply with the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) in that no affidavit had been filed in support of the judicial review application. However, I gave both applicants the opportunity to give oral evidence today in support of their application. The first applicant took up that opportunity. His evidence is that he was working in Hurstville at the time the hearing invitation was sent and seldom returned to his home address. He states that his wife was also absent from their home address at this time. He states that he had asked a friend living at his home address to collect correspondence for him but that it appears that his friend had neglected to draw the hearing invitation to his attention. I also received as evidence a book of relevant documents filed on behalf of the Minister on 5 January 2006.
This matter came before me today on the first court date following the filing of the judicial review application. Rule 44.11 of the Federal Magistrates Court Rules sets out the orders that may be made at a first court date in a migration proceeding. These include an order for an immediate hearing under rule 44.12. I elected to make an order for an immediate hearing in this case. I took into account that the grounds in the review application were clear on their face and had been confirmed by the applicants. I also took into account that relevant evidence had been filed by the Minister to deal with those grounds.
The applicants sought an adjournment. The applicants also sought the opportunity to participate in the Minister's panel legal advice scheme. I refused an adjournment as I formed the view that no useful purpose would be served by it. I take the view that procedural fairness does not necessitate access to the Minister's panel advice scheme. If it did then the Court would, for practical purposes, never be able to order an immediate hearing under rule 44.12 at a first court date. That is when applicants are first given the opportunity to elect to participate in the Minister’s advice scheme. The Court’s experience is that it takes months for such requests to be actioned by the registry, for documents to be forwarded to the panel adviser, for the adviser and the applicant to make contact and for advice to be provided. To my mind, it would be far more sensible and efficient if applicants were given the opportunity to elect to participate in the scheme when notified of an adverse RRT decision, and if the scheme were administered by the RRT, rather than the Court. There would then be some prospect that applicants would receive advice before coming to court. In its current state the scheme cannot and should not prevent the timely disposal of cases by the Court. There are circumstances where the merit or lack of merit of a judicial review application is so clear that it should be dealt with at the first court date. This is such a case.
Rule 44.12 of the Federal Magistrates Court Rules deals with the conduct of a show cause hearing. Subrule (1) provides that at such a hearing the Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. Conversely, if an arguable case is demonstrated the Court may adjourn the proceeding and make arrangements for a final hearing or, alternatively, make final orders at that time. The question then for me to resolve is whether the judicial review application discloses an arguable case. In my view there is no doubt that it does not. Neither ground of asserted jurisdictional error has any substance.
There is no doubt that a hearing invitation was sent to the applicants at their nominated address for service. The checklist appearing on page 54 of the court book establishes to my satisfaction that the invitation was sent by a prescribed method and in a timely fashion. In the circumstances, the applicants are deemed to have received the application seven working days after the date of it.
Accordingly, even if I were to accept the first applicant's evidence that he did not receive the hearing invitation, it would make no difference. There was no breach of s.425. Neither was there any breach of s.424A(1). There are two reasons for that. The first is that the so called “information”, which the applicants assert should have been disclosed, is not in truth information at all but simply part of the RRT’s reasoning process. The second reason is that although the RRT relied upon the material in the protection visa application to deal with the review application, it was the insufficiency of that information which was the determining factor. Where insufficient information is provided by applicants the RRT is not obliged under s.424A(1) to give an invitation to comment on that insufficiency.
Even if there had been such an obligation Her Honour Bennett J has previously held that it would be met by the words in a hearing invitation letter making clear that the RRT had considered the material before it but was unable to make a favourable decision based on it[1].
[1] SZBCS v Minister for Immigration [2005] FCA 1457 at [16].
I find that the judicial review application does not disclose an arguable case. Accordingly, I dismiss it.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in the sum of $2,500 based upon paragraph (b) of item 1 of Part 2 of Schedule 1 to the Federal Magistrates Court Rules. The costs scale is somewhat ambiguous in these circumstances. A sum of $1,000 is prescribed where a proceeding is concluded at or before the first court date. The sum of $2,500 is prescribed where a proceeding is concluded at an interlocutory hearing under rule 44.12. The Rules do not specifically deal with the situation where, as here, an immediate hearing under rule 44.12 is conducted at the first court date.
In my view the sum of $2,500 prescribed under paragraph (b) of item 1 of Part 2 of Schedule 1 to the Rules is intended to deal with a hearing following a first court date. The scale of costs is an event based scale where costs are assumed to increase over time as more work is done. In my view, where an immediate hearing under rule 44.12 is conducted at the first court date the correct prescribed amount is $1,000, pursuant to paragraph (a) of item 1 in Part 2 of Schedule 1. If in a particular case that is inadequate recompense to the Minister it is open to the Minister to seek that a higher amount be fixed in accordance with rule 21.02(2)(a).
In this matter an immediate hearing was not sought by the Minister.
A court book had been prepared and filed but counsel had not been engaged and no submissions had been prepared. I find that the appropriate amount of costs prescribed under the Rules in this case is $1,000. Lest there be any doubt, I will fix costs in that amount.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 January 2006
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