SZIWO v Minister for Immigration

[2006] FMCA 1214

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1214

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

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

Applicant: SZIWO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1498 of 2006

Judgment of: Driver FM

Hearing date: 21 August 2006

Delivered at: Sydney

Delivered on: 21 August 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms H Blackman
Blake Dawson Waldron

INTERLOCUTORY ORDERS

1. The application is dismissed pursuant to 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 $1,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1498 of 2006

SZIWO

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 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 18 April 2006.  The show cause application filed on 24 May 2006 asserts notification of the RRT decision on 28 April 2006.  On that basis I find that the show cause application was filed within time.  The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from China.  He had made protection visa claims based upon asserted corrupt conduct by a policeman there.  The applicant had claimed that the policeman had demanded bribes from him because of the applicant’s circulation of an anti-government book.  The applicant asserted that he in fact faced a criminal prosecution instigated by this policeman when the policeman found out that the applicant had left China.

3. The show cause application asserts breaches of ss.424A and 425 of the Migration Act 1958 (Cth) (“the Migration Act”). When the matter first came before me on 21 June 2006 I ordered a show cause hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I also made orders for the filing of additional material for the purposes of today’s hearing. The Minister filed a book of relevant documents on 11 June 2006 that did not include a complete copy of the RRT decision. That defect was remedied by the affidavit of Hayley Blackman filed in court by leave today. I received both the court book and Ms Blackman’s affidavit as evidence. I note in addition that a complete copy of the RRT decision was attached to the applicant’s affidavit filed on 24 May 2006 in support of his application. The applicant continues to rely upon that application.

4. The asserted breach of s.424A relates to an allegation that the RRT decision was based in whole or part upon the applicant’s protection visa claims. That assertion is not supported by a reading of the RRT decision. It is apparent from the presiding member’s reasons that the information that led to the delegate’s decision being affirmed was not information derived from the applicant’s protection visa application. Rather, it was the applicant’s answers to questions put to him at the hearing conducted by the RRT which determined the outcome. To the extent that the applicant’s protection visa claims had any bearing at all they simply provided the starting point from which the applicant was questioned by the presiding member.

5. I see no arguable case of a breach of s.424A. Neither is there any arguable case of a breach of s.425 of the Migration Act. The RRT met its obligation to invite the applicant to a hearing (court book, pages 48 and 49). The applicant did not respond to that hearing invitation but, nevertheless, attended at the scheduled time. The presiding member records on page 69 of the court book that because the applicant arrived unannounced it was necessary to find an interpreter at short notice. There was an interruption during the hearing because the interpreter had to leave and a replacement interpreter was arranged. The presiding member records that the applicant raised no objection to either of the interpreters or to the RRT’s course of action. I asked the applicant whether he disputed that statement by the presiding member and he said he did not.

6. The application asserts that the conduct of the hearing was unfair.  However, the applicant has advanced no evidence in support of that assertion despite the opportunity to do so, based upon my orders of 21 June.  In the absence of any supporting evidence there is no substance to an assertion of procedural unfairness.  No other jurisdictional error is apparent to me from the available material. 

7. I find that the applicant has failed to demonstrate an arguable case and I 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.  Under the court rules, scale costs would in this instance be $2,500.  Ms Blackman, for the Minister, has properly sought the lesser sum of $1,800.  The applicant did not wish to be heard on costs.  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 $1,800.

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

Associate: 

Date:  31 August 2006