SZIBA v Minister for Immigration
[2006] FMCA 896
•13 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 896 |
| MIGRATION – RRT – Chinese Falun Gong practitioner – did not attend Tribunal hearing – no arguable case – application dismissed at show cause hearing. |
| Migration Act 1958 (Cth), ss.425A, 426A(1), 441A(4), 441C(4), 476 Migration Regulations 1994 (Cth), reg.4.35B |
| VNAA v Minister for Immigration (2004) 136 FCR 407 |
| Applicant: | SZIBA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 48 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 13 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the First Respondent: | Ms T Quinn |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 48 of 2006
| SZIBA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under Federal Magistrates Court Rule 44.05 seeking an order that the respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal handed down on 1 December 2005. The Tribunal affirmed a decision refusing to grant a protection visa to the applicant.
The application had a first Court date before me on 7 February 2006. The applicant attended and had the benefit of a Mandarin interpreter. I explained the nature of the proceedings to him, and gave him an opportunity to obtain free legal advice after receiving a bundle of documents prepared by the Minister’s solicitors. He was given leave to file an amended application and any evidence on affidavit by 26 May. The matter was listed today for a hearing under r.44.12, and the applicant was clearly advised that his application might be dismissed if the Court were not satisfied that it raised an arguable case for the relief claimed.
The applicant has filed an amended application, but no additional evidence.
His application for a protection visa was supported by a brief statement claiming that he had been: “repeatedly abducted and detained by local police after July 1999 because I refused to renounce Falun Gong”. He also claimed that he had been arrested in March 2003 and sent to a detention centre, where he held a hunger strike for more than one month, and suffered other mistreatment before being sentenced to four months imprisonment.
No supporting evidence for these claims was provided to the delegate, nor subsequently to the Tribunal. A delegate refused the application on 15 August 2005, and the applicant’s application for review was accompanied by a shorter version of his original statement.
He did not appoint an agent or authorised recipient for correspondence, but asked the Tribunal to send correspondence to an address at Pitt Street, Sydney. The Tribunal did send to that address a letter dated 13 October 2005 telling the applicant that the Tribunal was unable to make a decision on the information which was before the Tribunal, and inviting the applicant to a hearing on 9 November 2005.
I am satisfied that the letter complied with the requirements of s.425A and specified the requisite period of notice under s.441A(4) and reg.4.35D. The applicant was deemed to have received the letter pursuant to s.441C(4) of the Migration Act, and the Tribunal had power under s.426A(1) to proceed with its decision without allowing the applicant further opportunity to attend a hearing.
In its reasons for decision, the Tribunal records that no response was received to its letter, that the applicant did not appear, and that it did proceed pursuant to s.426A(1).
The Tribunal pointed to aspects of the information before the Tribunal which left it unable to be satisfied as to the truth of the applicant’s claims. The Tribunal concluded:
As at the date of the decision there is no persuasive evidence before the Tribunal that enables it to be satisfied that there is a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, if he returns to his country.
I have considered the procedures and reasons of the Tribunal and can identify no arguable ground of judicial review.
The application originally filed in this Court contains three grounds:
1. There was no evidence or the other materials to justify the making of the decision.
2. I am entitled to a protection visa
3. I was sent to jail in China because I practiced Falun Gong.
The second and third ground do not raise any ground of jurisdictional error which could vitiate the Tribunal’s decision, but merely assert the applicant’s claim to be a refugee.
There is no substance to the first ground. The Tribunal’s decision was, in my opinion, unarguably open to it on the material before it. Its reason for affirming the delegate’s decision was that it was unable to be persuaded by the material before it due to the absence of the applicant from the hearing to give it more detail.
The applicant’s amended application complains that the Tribunal “failed to consider that I am genuine Falun Gong practitioner”, and reasserts his refugee claims. But this does not raise an arguable ground of jurisdictional error.
Before me today the applicant asserted that he did not respond to the Tribunal’s invitation to a hearing because he did not receive its letter. The circumstances of this claim have not been set out in an affidavit. However, even assuming that it is true, it would not provide the applicant with an arguable ground of jurisdictional error in the procedures followed by the Tribunal. It is clear that the Tribunal’s power under s.426A(1) is available even where an applicant does not actually receive notice of the invitation to a hearing, if the statutory procedures for notification have been followed (see VNAA v Minister for Immigration (2004) 136 FCR 407 at [14-15]).
Neither the applicant’s applications nor the statements he has made satisfy me that his application has raised an arguable case for the relief claimed. I consider it is appropriate for me to dismiss the matter at an interlocutory stage pursuant to r.44.12(1)(a).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 5 July 2006
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