SZICB v Minister for Immigration

[2007] FMCA 698

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 698

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.422B, 424A, 425

Applicant: SZICB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG157 of 2007

Judgment of: Driver FM

Hearing date: 10 May 2007

Delivered at: Sydney

Delivered on: 10 May 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr B Cramer
Blake Dawson Waldron

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 the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG157 of 2007

SZICB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 1 December 2006 and was handed down on 21 December 2006.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. 

2. A decision of the Tribunal as earlier constituted was set aside by the Federal Court and the matter was remitted to the Tribunal for reconsideration.  On that reconsideration the applicant was invited to a hearing and appeared on 15 November 2006 to give evidence and present arguments with the assistance of an interpreter.  The Tribunal rejected the applicant’s claims based upon his evidence.  The Tribunal expressed major concerns about the applicant’s evidence.  In particular, the Tribunal was concerned that the applicant did not display a level of knowledge of Falun Gong that could reasonably be expected of a practitioner of eight years standing, as he had claimed. 

3. These proceedings began with a show cause application filed on 16 January 2007.  In that application the applicant asserts actual notification of the Tribunal decision on 28 December 2006.  I find that the application was filed within time. 

4. The application asserts that the presiding member did not assess the review application fairly.  The assertion is repeated in an affidavit which accompanied the application which I accepted as a submission.  The particulars advanced in the application are that the presiding member made assumptions, that he did not give much consideration to the evidence provided by the applicant and that the presiding member simply denied the applicant’s claims. 

5. I have before me as evidence the book of relevant documents filed on 16 April 2007. That discloses that the applicant was invited to a hearing before the Tribunal and that he did attend and gave evidence with the assistance of an interpreter. There is no arguable breach of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal decision turned upon the oral evidence given by the applicant at the hearing conducted by the Tribunal. I see no arguable case of a breach of s.424A of the Migration Act. Section 422B of the Migration Act applies in this case. I see no arguable case of a breach of the common law rules of procedural fairness to the extent that those rules are not excluded by s.422B.

6. It is plain that the applicant failed before the Tribunal because he was not believed.  In my view the conclusions reached by the Tribunal were open to it on the material before it.  The applicant expressed concern that he did not receive a hearing invitation from the Tribunal but it is apparent that that concern related to the first attempted review which was set aside by the Federal Court.

7. The applicant is also concerned that he has further information available to support his protection visa claims.  I understand from what he said that this is material which has become available since the Tribunal made its decision.  Obviously the Tribunal could not take into account material that it did not have.  There is nothing to indicate that the applicant was prevented by the Tribunal from submitting whatever he wished to. 

8. I find that the application fails to disclose an arguable case of jurisdictional error. I therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

9. The Minister seeks scale costs.  The applicant is concerned about his capacity to pay but, as has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making the costs order.  I see no reason in this case to depart from the Federal Magistrates Court scale. 

10. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and item 1(b) of Part 2 of schedule 1 to the Federal Magistrates Court Rules in the sum of $2,500.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 May 2007