SZIAH v Minister for Immigration

[2006] FMCA 177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 177

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – summary dismissal of application as not disclosing an arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.91R

Applicant: SZIAH

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG12 of 2006

Judgment of: Driver FM

Hearing date: 9 February 2006

Delivered at: Sydney

Delivered on: 9 February 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms S Mason

Solicitors for the Respondents: 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 in accordance with the Federal Magistrates Court scale of costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG12 of 2006

SZIAH

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 orders to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”).  The RRT decision was handed down on 6 December 2005.  The application was filed on 3 January 2006.  I find that it was made within time.

2. The matter came before me on a first court date on 6 February 2006.  It was not clear to me at that stage whether the application disclosed an arguable case.  I ordered a hearing pursuant to rule 44.12 of the Federal Magistrate Courts Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today. I alerted the representatives at that time to my view that there could be an issue additional to that raised in the application. That was whether the RRT had breached s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).

3. During oral argument today the applicant produced a document which he said had been prepared by people he described as his legal advisers.  This turned out to be an amended application.  I gave leave for him to file that in court and he confirmed that it set out the grounds upon which he wished to rely.  The amended application contains four grounds.  These all relate to the applicant’s membership of an organisation known as Tien Do and the RRT's assessment of the risk of the applicant suffering persecution by reason of his association with that organisation.

4. The applicant claimed that he had become involved with Tien Do since 2001.  As the applicant had arrived in Australia in 1999 the presiding member correctly identified this claim as a sur place claim.  That finding is set out on page 83 of the court book, which I accepted as evidence for the purposes of today's hearing.  The RRT considered the applicant's claim and in so doing took into account certain country information about Tien Do.  The significant findings by the RRT are set out on page 84 of the court book.  The presiding member said:

   In view of these reports, although the Tribunal accepts that the applicant has become a practitioner of Tian Do while in Australia, there is no evidence that he has a profile in the organisation which would increase the risk of him being targeted in China.  The Tribunal is not convinced that the applicant joined Tian Do otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention as amended by the Refugees Protocol.  The Tribunal accepts that there has been intense propaganda against Tien Do and it remains illegal in China.  Nevertheless, the Tribunal has not seen any country reports which show that members are being mistreated.  Consequently, the Tribunal is not convinced that on his return to China that the applicant would face persecution.

5. The amended application asserts that the RRT misunderstood the applicant's claims, that the RRT referred to limited information in considering them, that the RRT failed to assess the applicant's chance of persecution on his return to China because of his involvement with Tien Do and that the RRT did not know that Tien Do is the same as the organisation known as Yi Guang Dao.  The last assertion is plainly wrong (see court book, page 83 at about point 7).

6. The other alleged grounds in my view merely amount to a contest over the merits of the RRT decision. In my view, the only arguable jurisdictional error made by the RRT was its apparent failure to comply with s.91R(3). Despite my prompting at the first court date and despite his apparent consultation with legal advisers, the applicant has not asserted that error in his amended application.

7. Even if he had adopted that assertion, however, I would dismiss his application. That is because the apparent error of the RRT was to fail to disregard the applicant's activities in Australia as required by s.91R(3). In my view, it is strongly arguable that, having found that the RRT was not convinced that the applicant joined Tien Do otherwise than for the purpose of strengthening his claim to be a refugee, the RRT was bound to disregard his activities in Australia. The presiding member failed to do that and instead considered the claim. However, the error was to consider the applicant's claim on a more generis basis than that permitted by the Migration Act. Even if jurisdictional error were established by such a mistake it would be futile to return the case to the RRT for further consideration. The errors asserted in the amended application concerning the consideration of the claims are irrelevant because it is strongly arguable that the claims should not have been considered at all.

8. Accordingly, 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 Minister presses an application for costs.   The applicant indicated that he would pay.  I will order that the applicant pay the first respondent's costs and disbursements of an incidental to the application in accordance with the Federal Magistrates Court scale of costs.

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

Associate: 

Date:  23 February 2006