SZINO v Minister for Immigration

[2006] FMCA 589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZINO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 589

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

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

Applicant: SZINO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG823 of 2006

Judgment of: Driver FM

Hearing date: 10 July 2006

Delivered at: Sydney

Delivered on: 10 July 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, pursuant to rule 44.15(1) and item 1(b) to part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) in the prescribed amount of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG823 of 2006

SZINO

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 RRT decision was handed down on 23 February 2006.  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 Christian religion.  He attended a hearing before the RRT at which he was questioned at some length about his claims. 

2. The RRT found that the applicant's claims were not credible and rejected them.  Based upon the questions asked of the applicant at the hearing and his answers to those questions, the presiding member found that the applicant was not a truthful witness. 

3. These proceedings began with a show cause application filed on 21 March 2006.  In that application, the applicant asserted notification of the RRT decision on 2 March 2006.  On that basis I find that the application was made within time. 

4. The application asserted procedural unfairness based upon the presiding member's reasoning as set out in the application. The application also asserted a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) based upon the same particulars. Further, the application asserted a breach of s.425 of the Migration Act based upon asserted interpretation problems at the RRT hearing.

5. This matter first came before me on 24 April 2006. At that time it was not clear to me whether the application disclosed an arguable case. It was clear to me that in order to answer that question there would need to be an opportunity for the parties to produce evidence. In particular, it was clear to me that I would require evidence of what occurred at the RRT hearing. I ordered the Minister to file and serve a book of relevant documents. That was done on 15 May 2006. I received the book of relevant documents as evidence for the purposes of today's hearing. I ordered a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today.

6. The applicant told me on 24 April 2006 that he had not received an audio recording of the RRT hearing.  I ordered the Minister to ensure that a copy of the audio recording was provided to the applicant.  I also gave the applicant the opportunity to file and serve an amended application and affidavit evidence by 9 June 2006.  Order 5 made by me on 24 April 2006 specifically adverted to the possibility that the applicant may wish to produce a transcript of the RRT hearing.  The applicant filed an amended application on 9 June 2006.  The grounds in that application appear to be very similar to, if not identical to, those in the original application.  The applicant has not filed any evidence in support of his amended application.  He did file a short affidavit in support of his original application which simply introduced the RRT decision. 

7. The amended application asserts procedural fairness by reference to the RRT’s reasoning.  I explored with the applicant during oral submissions whether there was anything in this ground other than a disagreement with the RRT’s reasoning.  I have concluded that there is not.  The applicant is plainly concerned that he was not believed.  He disputes the presiding member's reasoning which led her to the conclusion that the applicant was untruthful.  However, that is no more than a dispute over the merits of the RRT decision.  As has been repeatedly stated the Court cannot review the merits of RRT decisions.

8. The asserted breach of s.424A of the Migration Act also focuses upon the presiding member's reasoning. I asked the applicant what the information was that he says should have been disclosed but was not. He told me that the presiding member asked him many questions but he did not get the sense from the questions and his answers that he was not believed. He is concerned that he was not given notice under s.424A of the Migration Act of the presiding member's disbelief about his claims. In the absence of the transcript I am unable to say precisely what occurred at the RRT hearing. It is apparent however from the court book that no notice was given pursuant to s.424A of the Migration Act. It is clear from the court book, and in particular from the RRT’s reasons for its decision, that what determined the outcome of the review application was what occurred at the hearing. The state of disbelief reached by the presiding member was based upon the questions asked and the answers given by the applicant. There is, however, no obligation under s.424A of the Migration Act for a tribunal to disclose its reasoning process. The obligation is to disclose information, not what a presiding member thinks about information given by an applicant.

9. The amended application also asserts a breach of s.425 of the Migration Act. That breach centres upon asserted interpretation problems at the hearing. I accept that in principle interpretation problems at a tribunal hearing may support an assertion that a hearing invitation is merely an empty gesture. However, where interpretation problems are asserted there needs to be some evidence of them. There is no hint on the face of the RRT decision that there were any interpretation problems. The applicant first told me from the bar table today that interpretation problems only became apparent to him after the RRT hearing when he listened to the audio tape. There are two problems with that proposition.

10. The first is that when this matter first came before me the applicant told me that he had not received the audio tape.  His application nevertheless asserted interpretation problems at that time.  Secondly, the applicant confirmed to me from the bar table that his English is not sufficiently good to enable him to say whether or not there were any interpretation problems.  The applicant told me from the bar table that the interpretation problems have been revealed to him by a person called Henry who has been assisting him to some extent with his present application.  The applicant told me that Henry operates from the same address as the Priscilla International Company which was representing the applicant before the RRT.  The applicant was unsure whether Henry works for that company.  He was clear, however, that Henry was either unwilling or unable or both to provide a translation or transcription of the RRT hearing or evidence in relation to it.  When I pointed out to the applicant that I had given him the opportunity to provide evidence about interpretation problems and he had not done so he asserted that the interpreter at the RRT hearing had revealed problems to him.  I regard that assertion as a recent invention.  The applicant could have set out that assertion in an affidavit made by himself but he has not done so.  I conclude that the applicant has been given a fair opportunity to present evidence in support of the asserted interpretation problems and he has failed to do so.

11. I find that the amended application fails to disclose an arguable case both on the basis of general principles (in relation to the attack on the RRT’s reasoning) and also on the basis of a lack of supporting evidence (in relation to the alleged interpretation problems). 

12. The applicant also asserted orally today that the RRT erred in failing to undertake further inquiries about his claims.  I understood the applicant to be saying in particular that the RRT should have made inquiries of the applicant's church in Australia about the sincerity of his beliefs.  However, the RRT was under no obligation to follow up further leads of inquiry.  The findings made by the presiding member were open to her on the material before her and there was no obligation to inquire further.

13. I find, for the purposes of rule 44.12(1)(a) of the Federal Magistrates Court Rules, that the applicant has failed to demonstrate an arguable case for the relief he claims.

14. Accordingly, I will dismiss the application pursuant to that rule.

15. The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant expressed some surprise and concern at the prospect of a costs order but did not advance any cogent reasons why an order should not be made. I will order pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the prescribed amount of $2,500.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 July 2006