SZHZB v Minister for Immigration

[2006] FMCA 169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHZB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 169

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of application as disclosing no arguable case.

COSTS – Minister obliged, as a model litigant, to disclose actual costs incurred if they are less than the prescribed scale of costs.

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

Applicant: SZHZB

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG3844 of 2005

Judgment of: Driver FM

Hearing date: 9 February 2006

Delivered at: Sydney

Delivered on: 9 February 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms T Quinn
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 $1,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3844 of 2005

SZHZB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”).  The applicant had claimed religious persecution in China.  The decision of the RRT was handed down on 6 December 2005.  The application to show cause was filed on 23 December 2005.  It was clearly filed within time.

2. Because it was not apparent to me at the first court date whether the application disclosed an arguable case, I directed that the matter be listed for a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today. On 1 February 2006, the Minister filed a book of relevant documents. I received that book as evidence in today's hearing.

3. I reviewed the application with the applicant during oral argument. The application contains four grounds. The first ground is that the RRT did not notify the applicant of the reasons for its refusal of her review application in writing before the RRT made its decision. It was apparent from discussion with the applicant that she was intending to assert a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). However, that section does not require disclosure of the RRT’s reasoning process. It requires the disclosure of information. This RRT decision turned on country information which was not required to be disclosed. Also determinative was the insufficiency of information provided by the applicant. Neither is that information required to be disclosed pursuant to s.424A. I find that there is no arguable case of a breach of that section.

4. The second ground of review is that the RRT believed that the Chinese authorities' respect for religious freedom remained poor.  However, the RRT believed that the applicant was not a Christian or Catholic or a member of the Underground Church without sufficient evidence to support that conclusion.  That ground of review does not, on its face, clearly point to any jurisdictional error.  Further, it misrepresents what the RRT decided.  The relevant finding appears on page 63 of the court book.  The presiding member said:

   The applicant's claims are lacking in detail.  Without further information from the applicant I am not satisfied the applicant is a Christian or a Catholic or a member of the underground Church.  It follows I am not satisfied the applicant fled China fearing harm from the Chinese authorities for her religion.  I am unable to be satisfied that the applicant has a well-founded fear of persecution for reasons of her religion.

5. It was for the applicant to persuade the RRT of her claims.  The RRT did not have to search out evidence to reject her claims.  The presiding member was not persuaded about the applicant's claims on the basis of the limited material she provided.  No jurisdictional error is disclosed from the presiding member's approach and the second ground of review discloses no arguable case.

6. The third and fourth grounds of review are related.  The third ground asserts bias and the fourth ground asserts a failure to apply correct legal procedure because of bias.  During the course of argument, the applicant stated that her real problem was that she had not prepared her documents well.  She agreed that this did not point to any bias and she agreed that there was nothing about the RRT decision or its procedure that gave rise to an apprehension of bias.  She stated that she had no difficulty with the procedures followed by the RRT.  The third and fourth grounds of review do not disclose any arguable case. 

7. I explored with the applicant whether any other ground of review might be advanced.  The applicant was invited to a hearing before the RRT and accepted that invitation.  However, she did not appear at the schedule time of the hearing and the RRT elected to proceed in her absence.  The applicant told me from the bar table that the only reason she did not attend was because the hearing time was inconvenient for her work.  However, she did not disclose any problem to the RRT.  She made no contact with the RRT following her acceptance of the hearing invitation.  In these circumstances, no arguable case or jurisdictional error could be raised in relation to the decision of the RRT to proceed in the absence of the applicant. 

8. I can see no other arguable case of jurisdictional error in relation to this decision. I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

9. Costs should follow the event in this case. The Federal Magistrates Court scale of costs prescribes the sum of $2,500 costs at a hearing under rule 44.12. However, the Minister should not recover by application of the Rules more than has been incurred. Where the Minister's legal costs are less than the prescribed amount, in my view, the Minister as a model litigant is bound to disclose that. Ms Quinn, for the Minister, properly disclosed that the Minister's costs in respect of the application are $1,800. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $1,800.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  15 February 2006