SZIGE v Minister for Immigration

[2006] FMCA 355

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGE v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 355

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

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.426A

Applicant: SZIGE

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG338 of 2006

Judgment of: Driver FM

Hearing date: 13 March 2006

Delivered at: Sydney

Delivered on: 13 March 2006

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, pursuant to rule 44.15 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG338 of 2006

SZIGE

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 decision of the RRT was handed down on 3 January 2006.  The application for a show cause order was filed on 3 February 2006.  That application asserted actual notification of the RRT decision on 12 January 2006.  That contention was not contested.  I find that the application to this Court was filed within time.

2. The matter came before me on a first court date on 3 March 2006.  On that day I struck out the two grounds contained in the application.  That was because they failed to engage the jurisdiction of the Court.  No jurisdictional error was alleged.  I gave leave for an amended application giving full particulars of each ground alleged to be filed by 10 March 2006.  I also gave the applicant the opportunity to file affidavit evidence by the same date and called for a book of relevant documents by the same date.  A book of relevant documents was filed on 10 March 2006.  I received that book as evidence for the purposes of today's hearing.

3. The applicant did not file any affidavit evidence.  He did, however, file an amended application on 8 March 2006.  The six grounds of review set out in that amended application are broadly expressed.  Two particulars are given which the applicant told me related to all six grounds.  These are, first, that the RRT was not satisfied that the applicant is a Falun Gong practitioner.  The applicant asserts that he is a Falun Gong practitioner.  Secondly, the applicant says that he did not attend a hearing before the RRT because he did not understand English and missed the date for a hearing.  The first particular does not bear any real relationship to the RRT decision.  The RRT did not make any adverse finding in relation to the applicant's claim that he was a Falun Gong practitioner.  All the presiding member said was that there was a paucity of information supporting both the protection visa application and the review application.  Accordingly, the RRT was not satisfied that the applicant has a well founded fear of persecution for a Convention reason if he returns to China.

4. There could not be a clearer case of a RRT decision based upon a simple insufficiency of information.  The first particular and the grounds to which it relates cannot support any claim of jurisdictional error.  Neither does the second particular advance a claim of jurisdictional error.  The court book establishes, and the applicant confirmed from the bar table, that he did not appoint an agent or adviser to act for him in relation to his review application.  In his review application (court book, page 45) the applicant nominated a mailing address of 148/460 Pitt Street, Sydney.  The applicant told me from the bar table that this was the address of a friend who had agreed to receive mail for him and to draw it to his attention.  This was the address that was used by the RRT for its correspondence.  On 28 September 2005 the RRT wrote to the applicant at his nominated address acknowledging receipt of his review application.  The applicant could recall the letter but did not understand it because of his lack of knowledge of English.  On 25 October 2005 the RRT wrote to the applicant again at his nominated address to invite him to a hearing.  Again, the applicant could recall the letter but did not know what it said.  On 7 December 2005 the RRT wrote to the applicant a third time at his nominated address to advise him that the RRT had made a decision and to inform him of the date on which it would be handed down.  Once again the applicant could recall the letter but did not know what it said.

5. Finally, on 3 January 2006 the RRT wrote to the applicant at his nominated address to provide him with the RRT’s decision and reasons.  On this occasion the applicant's friend apparently explained the documents to the applicant in sufficient detail for him to make his application to this Court.  The applicant confirmed from the bar table that he had made no contact with the RRT after receiving the hearing invitation sent to him.

6. In these circumstances it is clear to me that the RRT did what it could to keep the applicant informed in relation to his application and complied with its obligations to invite the applicant to a hearing. It is apparent from what the presiding member says in the reasons for decision of the RRT (court book, page 60) that when the applicant did not appear at the time and place scheduled for the hearing the RRT elected to proceed in his absence, pursuant to s.426A of the Migration Act 1958 (Cth). The RRT was entitled to proceed in that manner. There is no evidence that the RRT was on notice of anything that might have required an adjournment.

7. I see nothing in the amended application that could support an arguable case of jurisdictional error. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

8. The application having been dismissed, costs should follow the event. The Minister seeks an award of costs on the basis of the Federal Magistrates Court scale of costs in migration proceedings. In the present circumstances that is an amount of $2,500. The applicant did not wish to be heard on costs. 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 of the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:  17 March 2006