SZINS v Minister for Immigration
[2006] FMCA 573
•20 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZINS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 573 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of judicial review application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.426A |
| Applicant: | SZINS |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG845 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 20 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.
The application is dismissed, pursuant to rule 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, fixed in the sum $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG845 of 2006
| SZINS |
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 RRT decision was handed down on 21 February 2006. The application was filed on 22 March 2006. The applicant asserts notification of the decision on 2 March 2006. On that basis I find that the application was filed within time. The applicant had claimed persecution in China by reason of her practise of Falun Gong. She had made written claims but the RRT decided that it could not make a favourable decision on that information alone.
The applicant was invited to attend a hearing before the RRT by letter dated 7 December 2005. The RRT decision records that the applicant made no response to that invitation and failed to attend at the scheduled time of the hearing on 13 January 2006. The presiding member elected to proceed in the applicant's absence pursuant to s.426A of the Migration Act 1958 (Cth). The resulting decision of the RRT is a very simple one. In essence, the presiding member simply confirmed what the position was at the time the applicant was invited to a hearing, namely, that there was insufficient material before the RRT to support a favourable decision.
The show cause application asserts jurisdictional error in the most general of terms. Essentially, the applicant asserts that the RRT failed to consider the whole of her case and that the decision is illogical and unreasonable. No particulars are provided. I explored with the applicant this morning when the matter first came before me whether there was any reason why I should not proceed immediately to conduct a show cause hearing. The applicant requested the opportunity to participate in the Minister's panel advice scheme. She sought more time to obtain legal assistance.
However, the applicant conceded from the bar table that she had received the hearing invitation sent to her by the RRT. It appeared to me that the only possible legal issue relating to the RRT decision would arise from the circumstances of the hearing invitation sent to the applicant and her non-attendance at the hearing. I formed the view that no useful purpose would be served by delay and ordered an immediate show cause hearing.
I gave the applicant the opportunity to give oral evidence and she accepted that opportunity. She told me that she did indeed receive the hearing invitation sent to her by the RRT. She confirmed that she made no response to that invitation. She explained that she did not understand the letter sent to her as she did not read English. I asked her why she did not find someone to explain the letter to her. She told me that she did eventually do that but that did not occur until March or April this year. The applicant confirmed that this was a delay of some three or four months after the hearing invitation. It was well after the scheduled time for the hearing. The applicant also confirmed that she did not communicate with the RRT in any way in December 2005 or January 2006.
On the basis of the applicant's evidence I conclude that the show cause application must fail. The RRT met its statutory obligation to invite the applicant to a hearing. The RRT was entitled but not required to proceed in the applicant's absence.
There was no circumstance known to the RRT that called for a delay of the hearing. In the circumstances, it was proper for the presiding member to proceed in the applicant's absence. There is no legal basis upon which the decision of the RRT can be challenged.
Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
On the question of costs, the application having been dismissed, the Minister seeks an order for costs. Ms Warner-Knight tells me that the Minister's costs to date, including disbursements, are $1,200 when assessed on a party and party basis. This is somewhat more than the $1,000 scale costs that would be payable at this stage of a migration proceeding. I accept, however, that the Minister has incurred a filing fee in seeking orders different from those sought in the application.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $1,200.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 April 2006
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