SZING v Minister for Immigration

[2006] FMCA 791

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZING v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 791

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of a show cause application as failing to disclose an arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

SZEEU v Minister for Immigration [2006] FCAFC 2

Applicant: SZING

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG808 of 2006

Judgment of: Driver FM

Hearing date: 1 June 2006

Delivered at: Sydney

Delivered on: 1 June 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Rose
Phillips Fox

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, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG808 of 2006

SZING

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 was handed down on 14 February 2006.  The applicant first sought review of the decision on 20 March 2006.  He asserted notification of the decision on 23 February 2006.  On that basis I find that the application was filed within time.

2. The RRT affirmed a decision of a 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.  The applicant arrived in Australia on 11 October 2005.  On 7 November 2005 he applied for a protection visa with the Minister's department.  The Minister's delegate refused that application on 18 November 2005.  On 19 December 2005 the applicant sought review of that decision by the RRT.

3. When this matter first came before me on 19 April 2006 I was concerned at the generality of the grounds of review in the application. I ordered a show cause hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I also ordered the applicant to file and serve particulars of the grounds of review asserted in his application. Alternatively, I gave the applicant the opportunity to file an amended application and evidence. An amended application was filed in court by leave today. In that application the applicant asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) based upon the failure by the RRT to disclose to him the details of his protection visa application relied upon in the RRT decision.

4. I received as evidence a court book filed by the Minister on 24 April 2006.  That is the only evidence I had before me.  That disclosed that on 22 December 2005 the RRT wrote to the applicant at the same address for service as he is currently using to advise him that the RRT was unable to make a favourable decision on the basis of the information he had provided (court book, page 53).  The applicant was invited to a hearing to be conducted on 23 January 2006.  The applicant acknowledged today from the bar table that he had received that letter but said that he did not properly understand it.  He said that he was also afraid of the Chinese authorities.  However, for whatever reason, he did not respond to the hearing invitation.  The presiding member noted that lack of response in the RRT reasons (court book, page 64).  The presiding member went on to note the applicant's protection visa claims.  He concluded that the broad assertions and scanty information provided was insufficient to support the grant of a protection visa.  In short, on the basis of the material before it, the RRT could not be satisfied that the applicant faced a real chance of suffering serious harm in China. 

5. The asserted breach of s.424A of the Migration Act cannot in this case be substantiated. The Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2 recognised the distinction which had earlier been drawn between decisions based upon the form and content of protection visa information and decisions based on a simple insufficiency of information. In the latter class of case there is no obligation to provide notice of adverse material under s.424A. This case clearly falls into the latter class. The amended application must fail.

6. In oral argument today the applicant sought to resurrect the allegation of bias contained in his first application.  However, there are no particulars of that allegation and no evidence whatsoever to support it.  I find that the allegation is baseless.  No other jurisdictional error is apparent to me.  I conclude that the applicant has failed to establish an arguable case of jurisdictional error.

7. I will therefore dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

8. The application having been dismissed, costs should follow the event.   The scale of costs applicable in migration proceedings in this Court calls for an award of costs in the sum of $2,500.  The Minister properly seeks an order fixed in the lesser amount of $2,000.  The applicant inquired about his rights of appeal but did not make any submissions on costs.

9. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  7 June 2006