SZIIP v Minister for Immigration
[2006] FMCA 729
•22 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIIP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 729 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as failing to disclose an arguable case – no jurisdictional error disclosed on the record of the RRT decision. |
| Migration Act 1958, ss.424A,.425 Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) |
| Applicant: | SZIIP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG460 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 22 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms Z Brauer Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $2500, in accordance with rule 44.15 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 |
SYG460 of 2006
| SZIIP |
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”). The decision was handed down on 24 January 2006. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The application to this Court was filed on 13 February 2006 and asserts notification of the decision on 24 January 2006. I find that the application was filed within time.
Relevant background facts are set out in the written submissions filed on behalf of the respondent Minister on 16 May 2006. I adopt as background for the purposes of this judgment paragraphs 2 to 8 of those written submissions:
The applicant is a 40 year old national of the People's Republic of China.[1] He arrived in Australia on 9 August 2005.[2] He submitted an application for a protection (class XA) visa on 31 August 2005.[3] The applicant claimed a well-founded fear of persecution on the basis that he was a Falun Gong practitioner.[4] After the delegate refused the application for a protection visa on 22 September 2005, the applicant applied to the RRT for review of the delegate's decision on 17 October 2005.[5]
[1] court book, pages 13 to 14.
[2] court book, page 15.
[3] court book, pages 1 to 35.
[4] court book, pages 27 to 28.
[5] court book, pages 48 to 51.
On 10 November 2005 the RRT wrote to the applicant and invited him to attend a hearing.[6] On 17 November 2005 the RRT received a response to hearing invitation form completed by the applicant indicating that he wished to come to a hearing.[7] On 12 December 2005 the applicant attended at the RRT hearing and gave oral evidence in support of his claims.[8]
[6] court book, pages 54 to 55.
[7] court book, page 61.
[8] court book, page 62.
The RRT made its decision on 3 January 2006, affirming the decision of the delegate refusing the grant of a protection visa to the applicant. The decision was handed down on 24 January 2006.[9]
[9] court book, page 68.
The applicant's claims
The applicant's claims, as set out in his protection visa application and in his evidence at the RRT hearing, were that:
a)he began practising Falun Gong in 1998;
b)he and his family joined activities supporting Falun Gong in Guangzhou;
c)he was arrested and detained for two days in May 2000;
d)two months later he was arrested again and detained, beaten and interrogated for six days;
e)he continued to practise Falun Gong secretly but was once again located by police. Police searched his home and took away his Falun Gong books, information and correspondence. He was detained for one week;
f)in July 2004 he was placed in custody and was forced to put in writing that he would cease practising and teaching Falun Gong. He was detained for nine months. He was beaten on three occasions and required medical attention following his release.
In support of his application, the applicant produced to the RRT photographs depicting him handing out leaflets in Sydney and of injuries he had suffered as a result of the beatings he had sustained.[10]
[10] court book, pages 56 to 60.
The RRT’s decision
The RRT made the following findings and comments:
a)it accepted that the applicant knew how to perform exercises involved in the practice of Falun Gong but noted that it was critical to determine whether his knowledge of Falun Gong arose in Australia or in the PRC;
b)it noted that the applicant was unable to explain the significance of the "Falun" or "Law Wheel" in Falun Gong;
c)it concluded that the applicant had not sought out and obtained the support of Falun Gong practitioners in Australia;
d)it found it difficult to accept the applicant's account of what happened to him in the PRC because it appeared to the RRT member that he had been treated leniently;
e)it did not accept as credible the applicant's evidence as to how he obtained his passport;
f)it did not accept that the applicant was truthful about his involvement in Falun Gong or the occasions on which he claimed to have been arrested in the PRC;
g)whilst it accepted that the applicant had suffered a bodily injury, it did not accept that this was caused by being beaten while in detention in the PRC;
h)it did not accept that the activities the applicant took part in Australia were done otherwise than for the purpose of strengthening his refugee claims. Accordingly, it disregarded that conduct.
In light of the above findings and comments, the RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he returned to the PRC.
This matter came before me on 8 March 2006. At that time it was not apparent whether the application and its supporting affidavit, also filed on 13 February 2006, disclosed an arguable case. The application simply asserts a failure to accord procedural fairness and a breach of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). The supporting affidavit says the same thing.
I made orders on 8 March 2006 for the filing of a book of relevant documents by the Minister and for any particulars or amended application or further supporting evidence to be filed by the applicant. I also made orders in relation to any legal submissions that the parties might wish to rely upon. Nothing further has been filed by the applicant. He confirmed today that he relied upon his existing application and supporting affidavit. The Minister has filed a court book which I receive as evidence for the purposes of today's hearing. The Minister also filed written submissions.
It is plain from the court book that there is no substance to the asserted breach of s.425 of the Migration Act. A hearing invitation was issued to the applicant by letter dated 10 November 2005[11] and the applicant responded that he did wish to attend the hearing[12].
[11] court book, pages 54 and 55
[12] court book, page 61
The decision record of the RRT records that the applicant did indeed attend a hearing on 12 December 2005. The applicant confirmed this. The decision record sets out in detail what happened at the hearing. It appears that the applicant was questioned at length about his protection visa claims. However, he was not believed. The applicant asserts a breach of procedural fairness by the RRT. He has provided no particulars. When I asked him about that claim he said that a friend had been able to obtain a protection visa by using material he had obtained about another person. He is apparently concerned that he did not stoop to that level of dishonesty but was not believed. That, however, if true, does not establish any want of procedural fairness on the part of the RRT. It would simply point to dishonest behaviour on the part of the applicant’s friend.
The Minister has properly addressed the possibility that the applicant might have been intending to assert a breach of s.424A of the Migration Act rather than s.425. This is dealt with in paragraphs 12 to 15 of the Minister's written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
The applicant has failed to amend his application and provide complete particulars of the ground of review raised. The applicant has also failed to tender any evidence of what occurred at the RRT hearing for this Court to find that any denial of procedural fairness occurred. The first respondent submits that the RRT’s overall finding that it could not accept the credibility of the applicant's evidence in relation to his involvement in Falun Gong was open to it on the material before it.
In affirming the decision under review, the RRT relied on:
a)independent country information;
b)information provided by the applicant at the RRT hearing, including photographs and the applicant's passport which the applicant produced to the RRT.
This information is information which is exempt from the obligations set out in section 424A(1) pursuant to s.424A(3)(a) and (b), respectively.
The first respondent submits that there is nothing on the face of the RRT’s decision which constitutes a breach of procedural fairness.
The application before the Court does not disclose any arguable case. Neither is any jurisdictional error apparent to me from my own reading of the record of the RRT decision. I will therefore dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“Federal Magistrates Court Rules”).
The Minister seeks scale costs in the sum of $2,500. The applicant explored in some detail with me what the consequences of a costs order would be, but did not oppose the making of one. I will order that the applicant 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 and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 May 2006
0
0
2