SZIXL v Minister for Immigration - [2006] FMCA 1846

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1846

MIGRATION – Review of Refugee Tribunal decision – failure to appear before Tribunal – no reviewable error.

Migration Act 1958 (Cth) ss.424A (1), 426A
Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules 2001 R.13.10(a)
Migration Regulations 1994 (Cth), R.44.35D

Applicant:

SZIXL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1607 of 2006

Judgment of:

Turner FM

Hearing date:

28 November 2006

Date of last submission:

28 November 2006

Delivered at:

Sydney

Delivered on:

28 November 2006

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Ms E. Warner Knight of Australian Government Solicitor

ORDERS

The application and the amended application be dismissed generally pursuant to R.13.10(a) of the Federal Magistrates Court Rules.
The applicant pay to the first respondent $2682, being costs of the first respondent incurred in this matter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1607 of 2006

SZIXL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application by the first respondent filed on 6 June 2006, seeking summary dismissal of the applicant’s application filed on 6 June 2006 and his amended application filed on 14 September 2006. Those applications were for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of a delegate for the Minister for Immigration & Multicultural Affairs on 24 February 2006 not to grant the applicant a protection visa.
On 8 March 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The Tribunal sent a letter to the applicant inviting him to give oral evidence and present arguments at a hearing on 12 April 2006. The applicant was advised that if he did not appear at the hearing and the hearing was not postponed, the Tribunal may make a decision on the case without further notice. No response was received by the Tribunal and the applicant did not appear before the Tribunal (Court Book (“CB”) p.59).
On 9 May 2006 the Tribunal handed down its decision dated 13 April 2006. The decision affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In his amended application filed on 14 September 2006 the applicant set out three grounds.
a)The Tribunal had bias against me and did not consider my application according to s.91R of the Migration Act. The Tribunal failed to consider my claims.
b)The Tribunal failed to carry out its statutory duty. The Tribunal did not notify me the reasons or part of the reason for affirming the decision before making a decision. I lost the opportunity common – (which the Court assumes meant “to comment”) upon the reason.
c)The Tribunal relied upon irrelevant material.
By notice of motion filed on 6 July 2006 the Minister sought that the proceedings be dismissed under Rule 13.10(a) on the ground that the applicant had no reasonable prospect of prosecuting the proceeding. Ground 1 alleges the Tribunal was biased. The Court finds there is absolutely nothing to indicate bias or a reasonable apprehension of bias. The Court finds that the applicant has no reasonable prospect of successfully prosecuting that proceeding or claim. That is a test set out in R.13.10(a) of the Federal Magistrates Court Rules and the same test is specified in s.17A of the Federal Magistrates Act.
Ground 2 alleges that the Tribunal did not notify the applicant of the reason or part of the reason for affirming the decision of the Minister’s delegate before it made its decision. If that claim is that the Tribunal breached s.424A(1) of the Act by failing to provide the applicant with particulars or information that is, or would be, the reason for affirming the decision of the delegate, that claim must fail. The reason for the decision of the Refugee Review Tribunal was not reliance on any information not disclosed to the applicant, but on the vague nature of the applicant’s claims and the inability of the Tribunal to inquire into them as the applicant did not attend at the hearing. The Courrt finds that there is no reasonable prospect of the applicant successfully prosecuting a claim that s.424A of the Act was breached by the Tribunal.
If the applicant is alleging in ground 2 that he was denied a fair hearing or the opportunity to have a fair hearing, the Court refers to the following: the applicant was invited to attend the hearing on 12 April 2006 by letter dated 16 March 2006 (CB 47). The letter was sent to the applicant’s mailing address as set out in his application form to the Refugee Review Tribunal. The letter complied with R.44.35D of the Migration Regulations 1994 as to the prescribed period of notice, in that the applicant had more than 14 days notice of the hearing. The letter told the applicant that the Tribunal was unable to make a decision in his favour on the material before it alone.
The letter told the applicant that, if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision without further notice. The Court finds that the applicant was given every opportunity to appear at the hearing and that the Tribunal had the power under s.426A of the Act to dismiss his application and affirm the decision of the delegate. There was no error of law or denial of natural justice. The Court finds that there is no reasonable prospect of the applicant successfully prosecuting the claims in ground 2.
Ground 3 alleges that the Tribunal relied on irrelevant material. The decision of the Tribunal was based on the inadequacy of the applicant’s evidence. That is referred to in the Court Book at p.60, second-last paragraph. Insofar as the Tribunal relied on material in the application for review, and on the applicant’s application for a protection visa, the Court finds that the Tribunal did not rely on irrelevant information. The applicant has not provided any information to show that the Tribunal relied on irrelevant information. The Court finds that there is no reasonable prospect of the applicant successfully prosecuting this claim.
The Court therefore finds that there is no reasonable prospect of the applicant successfully prosecuting any part of his proceeding or claim in his amended application. The Court makes the same finding in relation to the applicant’s original application filed on 6 June 2006.
Ground 1 of that application alleges failure of the Tribunal to properly consider the chance of persecution if the applicant returns to China. The Court finds that the Tribunal considered all of the material available to it, and reached findings properly open to it. There is no reasonable prospect of the applicant successfully prosecuting that claim.
Ground 2 alleges that the Tribunal’s decision that the applicant was not a refugee was not based on reasoning. The Court finds that the Tribunal considered the material made available to it. Based on that material, it was unable to find that the applicant was a refugee. The Tribunal did not find that the applicant was not a refugee. It is not for the Tribunal to make out a case for the applicant. There is no reasonable prospect of the applicant successfully prosecuting that claim.
Ground 3 of his application is substantially the same as ground 2 of the amended application and the Court repeats its reasons relating to that claim. The applicant has no reasonable prospect of successfully prosecuting ground 3 of his application.
Ground 4 is that the Tribunal failed to consider the applicant’s claims. The Court finds that the Tribunal considered the material available to it. The Court finds there is no reasonable prospect of the applicant successfully prosecuting this claim.
Ground 5 merely attaches a copy of the decision to his application.
The Court finds therefore that there is no reasonable prospect of the applicant successfully prosecuting any of his claims in his application or amended application, and that both applications are dismissed under Rule 13.10(a).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Dian Neligan

Date: 15 December 2006