SZIXB v Minister for Immigration
[2006] FMCA 1213
•21 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIXB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1213 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as disclosing no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.425 |
| Minister for Immigration v SZFHC [2006] FCAFC 73 |
| Applicant: | SZIXB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1578 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 E Palmer Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed pursuant to 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 in the sum of $2,500 in accordance with rule 44.15(1) and paragraph 1(b) of part 2 of schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1578 of 2006
| SZIXB |
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 affirmed a decision of the delegate Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon her practice of Falun Gong. The RRT decision was handed down on 9 May 2006. The show cause application was filed on 2 June 2006 and asserted notification of the decision on the date of handing down on 9 May. I find that the application was filed within time.
When this matter first came before me on 10 July 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”) in order to determine whether the application discloses an arguable case. I also made orders for the filing of additional material. The Minister filed a court book on 11 July 2006. I received that as evidence for the purposes of today’s hearing. The applicant denied receipt of the court book although it was sent to the address for service on her show cause application which was the same address for service as she had used in the RRT.
The applicant now relies upon an amended application filed on 14 August 2006. The amended application uses a different address for service. It appears from what the applicant told me from the bar table that both addresses for service are associated with people who are assisting her with her application in this Court and who appear to have also assisted her before the RRT.
This is yet another case of an applicant relying upon the unpaid assistance of persons apparently recommended by friends. The applicant has placed her affairs in the hands of these people and has relied upon their assistance. The applicant referred to a Mr Wong who assisted her before the RRT. He was not disclosed in the review application as an authorised recipient, although he appears to have had some link with the post office box identified as the address for service to the RRT (court book, page 42).
The amended application before the Court asserts a breach of s.425(1) of the Migration Act 1958 (Cth) (“the Migration Act”) and procedural unfairness. The asserted procedural unfairness is accompanied by particulars that appear to be an attack on the merits of the RRT decision. The presiding member records the applicant’s claims and notes that despite being invited to a hearing on the basis that the RRT was unable to make a favourable decision on the information provided by the applicant, the applicant failed to respond to the hearing invitation and did not attend at the time the hearing was scheduled on 4 April 2006. The presiding member records that she was unable to make a favourable decision on the limited material available to her. In effect, this confirmed what the applicant had already been told in the hearing invitation.
The applicant denies receipt of the hearing invitation which appears on pages 47 and 48 of the court book. That letter was sent to the applicant at the address she had nominated. The applicant may not have received it, but the RRT met its obligation under s.425 of the Migration Act to invite the applicant to a hearing. The RRT could possibly have done more. The applicant had provided a mobile telephone number in her review application (court book, page 43). There is no indication in the court book that there was an attempt to contact the applicant on that telephone number. However, while the RRT could possibly have done more it seems clear that it met its statutory obligation: Minister for Immigration v SZFHC [2006] FCAFC 73.
There is, in my view, no substance to the asserted breach of s.425 of the Migration Act and the assertion of procedural unfairness. No other jurisdictional error is apparent to me from the court book. I find that the application before the court fails to disclose an arguable case.
I will, therefore, dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Minister seeks scaled costs in the sum of $2,500. The applicant remains concerned about the outcome of her case in the RRT and also about the outcome in this Court. However, she did not wish to make any submissions on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500, in accordance with rule 44.15(1) and paragraph 1(d) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 September 2006
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