SZITQ v Minister for Immigration

[2007] FMCA 559

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZITQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 559

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Applicant: SZITQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3581 of 2006

Judgment of: Driver FM

Hearing date: 16 April 2007

Delivered at: Sydney

Delivered on: 16 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms G Broderick
Clayton Utz

INTERLOCUTORY ORDERS

1. The Court orders that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

2. The application is dismissed, pursuant to rule 4412(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3581 of 2006

SZITQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 31 October 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant sought judicial review of that decision in a show cause application filed in this Court on 4 December 2006.  In that application the applicant asserted notification of the Tribunal decision on 9 November 2006.  On that basis I find that the application was filed within time.  The application is supported by a short affidavit annexing a copy of the Tribunal decision.  Both the application and affidavit assert procedural unfairness. 

2. I will direct that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

3. When this matter first came before a registrar on 20 December 2006 the registrar ordered a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The registrar also gave the parties the opportunity to file and serve additional material. The only additional material filed was a court book filed on 22 December 2006. I received the court book as evidence for the purposes of today's hearing. I also received as evidence a letter dated 2 January 2007 to the applicant at her address for service enclosing by way of service a copy of the court book. The applicant confirmed that the address on the letter was correct but denied receipt of the letter and the court book. I provided her with a duplicate copy of the court book for the purposes of today's hearing.

4. I enquired of the applicant why she thought the Tribunal decision was unfair.  She told me that she disagreed with aspects of the Tribunal's reasons.  That is simply an attack on the merits of the Tribunal decision.  The applicant also asserted that there were interpretation difficulties at the hearing conducted by the Tribunal.  However, there is no evidence of any interpretation difficulties.   The only evidence I have before me is the court book and the Tribunal decision does not disclose any hint of any such difficulties.

5. The applicant failed before the Tribunal because the Tribunal did not accept her claims of persecution as a Zhong Gong practitioner in China.  The applicant's claims were not believed.  The conclusions reached by the Tribunal were open to it on the material before it.  The Tribunal met it obligations under the statutory code of procedure under the Migration Act 1958 (Cth).  While the applicant plainly disagrees with the Tribunal decision the merits of it are beyond the scope of this proceeding.

6. I find that the applicant has failed to demonstrate an arguable case of jurisdictional error. Accordingly I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

7. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $2,100.  That is less than the scale costs under the Rules for a show cause hearing of $2,500.  The applicant is concerned about her capacity to pay but that is not the issue.  The issue is whether the costs have been properly and reasonably incurred.  I accept that they have been.

8. I 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 $2,100.

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

Associate: 

Date:  18 April 2007