SZIBZ v Minister for Immigration
[2006] FMCA 463
•4 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 463 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming persecution in China – interlocutory dismissal of show cause application as disclosing no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958, s.424A Migration Regulations |
| Applicant: | SZIBZ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG94 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 4 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Palmer Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG94 of 2006
| SZIBZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
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”) handed down on 29 November 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had made claims of political persecution in China. He arrived in Australia on 8 August 1998. On 17 September 1998 he lodged an application for a protection visa with the Minister's department. There were evidently problems in the notification of the delegate's decision to the applicant or in the decision itself. The decision ultimately relied upon was a decision by a delegate of the Minister made on 4 April 2005.
The applicant applied to the RRT for review of that decision on 28 April 2005. The applicant was invited to a hearing which was conducted on 11 October 2005. He was assisted by a Cantonese interpreter. The RRT had also written to the applicant, pursuant to s.424A of the Migration Act 1958 (Cth) seeking a response to adverse information. The applicant provided a response to that invitation.
The RRT found the applicant to be a credible witness. However, the presiding member was not satisfied that the applicant would face a real chance of serious harm in China if he returns there either based upon his claims of imputed political opinion derived from his grandfather or upon the alternative ground supporting the application which was the Chinese one child policy.
These present proceedings commenced with the show cause application filed on 11 January 2006. I gave directions in relation to the application on 7 February 2006. The applicant told me on that day that he had not received an audio tape of the RRT hearing and I ordered the Minister to provide a copy. I am told by both parties that that was done. I also ordered the applicant to file and serve any amended application on which he wished to rely by 21 March 2006.
An amended application was filed on 10 February 2006. I gave the applicant until 31 March 2006 to file and serve any additional affidavit material including a transcript of the RRT hearing. No further evidence was filed. I ordered the Minister to file and serve a bundle of relevant documents by 28 February 2006. That order was complied with on 20 February 2006. I received the court book as evidence for the purposes of today's hearing.
The applicant relied upon his amended application filed on 10 February 2006. However, he did not have a copy with him and when I explored the contents of it in argument he appeared not to understand it. It transpired that the amended application was prepared by a migration agent who I understand is Ms Clare Liang, the agent who represented the applicant before the RRT. The applicant had, at his request, been referred for advice by a panel adviser under the Minister's panel advice scheme. It does not appear that any advice has yet been provided. However, I do not regard the absence of such advice as preventing me from dealing with the amended application in accordance with the timetable set by me on 7 February 2006. The applicant has chosen to rely upon the assistance provided by his migration agent.
The amended application sets out four grounds of review. None disclose an arguable case. The first ground is an assertion that the RRT failed to recognise the principle of non-refoulement in Article 33 of the Refugees Convention. The assertion is irrelevant to the RRT decision under review. The second ground is an allegation of bias. There is no evidence to support it. The third ground asserts error in using country information. There is no basis for the assertion. On my reading the RRT decision is a thorough examination of the applicant's claims. The fourth ground is an assertion of error in the construction of Part 8 of the Migration Regulations. This ground and the particulars accompanying it defied all attempts by me, the applicant and Ms Palmer to clothe it with some intelligible meaning. It appears to be nonsense.
In my view the RRT decision is free from jurisdictional error. The amended application fails to disclose an arguable case and I dismiss it, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The Minister seeks a costs order. The applicant made the obvious point that he could not pay without the resources to pay but he indicated a willingness to pay if able. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) of the Federal Magistrates Court Rules and Item 1(b) of Part 2 to Schedule 1 to those Rules. The relevant amount is $2,500.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 April 2006
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