SZIVD v Minister for Immigration

[2006] FMCA 1119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIVD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1119

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

Federal Magistrates Court Rules2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425, 425A, 426
Migration Regulations

Applicant: SZIVD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1342 of 2006

Judgment of: Driver FM

Hearing date: 7 August 2006

Delivered at: Sydney

Delivered on: 7 August 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr P Reynolds
Clayton Utz

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 pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1342 of 2006

SZIVD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The decision was handed down on 18 April 2006.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from China.  He claimed to fear persecution from Chinese authorities because he complained about his treatment by a mine owner and the police following an illegal strike in January 2005.  He claimed that he had been detained for six months and dismissed from his employment following the strike and after he was released he and six colleagues wrote a letter to the central committee complaining about their treatment.  He claimed that his six colleagues had been arrested and detained after he left China and he did not wish to be arrested again.  He claimed that if he returned to China he would be detained by the Chinese authorities.

3. The applicant arrived in Australia on 1 October 2005.  He applied for a protection visa on 1 November 2005.  A delegate of the Minister refused to grant the protection visa on 22 December 2005.  The RRT reviewed that decision.

4. These proceedings commenced with a show cause application filed on 10 May 2006.  That application asserted notification of the RRT decision on 23 April 2006.  I find that the application was filed within time.  The applicant now relies upon an amended application filed on 14 July 2006.  That application asserts the following grounds of review:

   a)first, that procedures that were required by the Migration Act 1958 (Cth) (“the Migration Act”) and Migration Regulations (“the Regulations”) to be observed were not observed;

   b)secondly, that the decision was an improper exercise of the power conferred by the Migration Act and Regulations;

   c)thirdly, that the decision involved an error of law being an error involving an incorrect application of the law to the facts;

   d)fourthly, that there was no evidence or other material to justify the making of the decision;

   e)fifthly, that the Department and the RRT did not consider the difficulty of the applicant collecting new evidence from China and that they did not provide substantial evidence before making the decision; and

   f)finally, that the RRT breached ss.425, 425A and 426 of the Migration Act.

5. I directed that there be a show cause hearing in relation to the application filed on 10 May 2006 because I was concerned that the generality of the grounds in that application appeared not to disclose any jurisdictional error. The amended application has twice as many grounds but they suffer from the same defects as those in the original application. None of the grounds are particularised in any meaningful way. The asserted breaches of ss.425, 425A and 426 make no sense in the context of this case.

6. I received as evidence for the purposes of today’s hearing, a court book filed on 8 June 2006.  That discloses that the applicant was invited to a hearing by the RRT (court book, pages 54 and 55).  He accepted that invitation (court book, page 56).  He attended a hearing before the RRT on 13 February 2006 (court book, page 78).

7. The applicant’s problem was that he was not believed by the presiding member. The decision plainly turned upon the oral evidence given by the applicant at the hearing. In the circumstances, I see no issue about any possible breach of s.424A of the Migration Act. Neither is there anything on the face of the record to indicate that there was any issue about the need for the applicant to obtain further material from China. There was evidence supporting the RRT decision which was evidence given by the applicant himself. The procedures required to be observed by the Migration Act and Regulations appear to have been observed. I see no error made by the RRT either of law or fact.

8. The grounds of review advanced by the applicant follow a template form.  The applicant was unable to expand upon them in oral submissions.  He complained that he had not received advice under the Minister’s Panel Advice Scheme.  I note that on 20 June 2006 the court registry wrote to the applicant at his address for service advising him that his panel adviser was Mr B. Slater.  The letter provided the address and telephone number for Mr Slater.  The applicant denies receipt of that letter although it was correctly addressed and he has received other correspondence from the Court.  On the same day the Court also wrote to Mr Slater providing him with the applicant’s contact details and drawing attention to today’s hearing.  I was told by Mr Reynolds, who appeared for the Minister, that on 18 July 2006 there was a conversation between Mr Slater’s firm and the Minister’s solicitors.  Following that conversation on the same day, documents requested by Mr Slater were sent to his firm.

9. I satisfied myself that the Court had done everything that could be expected of it to facilitate the provision of advice to the applicant.  So have the Minister’s solicitors.  I declined to adjourn today’s hearing. 

10. I find that the amended application fails to disclose an arguable case of jurisdictional error. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules2001 (Cth) (“the Federal Magistrates Court Rules”).

11. The application having been dismissed, costs should follow the event. The Minister seeks scale costs. The applicant enquired about his rights but did not otherwise wish to make submissions on costs. I will order that the applicant pay the first respondent’s costs and disbursements of an incidental to the applicant in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 August 2006