SZJAH v Minister for Immigration
[2006] FMCA 1299
•4 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJAH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1299 |
| 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), ss.425, 426A |
| Applicant: | SZJAH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1878 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 4 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2006 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Mr I Muthalib Blake Dawson Waldron |
ORDERS
The application is dismissed, pursuant to rule 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, fixed in the sum of $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1878 of 2006
| SZJAH |
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 a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. The RRT decision was signed on 18 May 2006. The decision was notified to the applicant by letter dated 8 June 2006. The show cause application was filed on 5 July 2006. It asserts receipt of the notification on 11 June 2006. On that basis I find that the show cause application was filed within time.
That application refers to the applicant’s fear of harm in China as a result of his Falun Gong practice. The application states that the applicant did not attend a hearing before the RRT because he was sick with a bad headache. The applicant states that he could not write to the RRT (presumably to advise of his illness) and so lost the chance to give evidence and present arguments. The applicant also asserts that he has lost his Chinese identification and that the RRT’s decision is void and of no effect. The application is supported by an affidavit filed on the same day, which simply annexes a copy of the RRT decision.
This matter first came before me on 27 July 2006. At that time it was not apparent that the show cause application disclosed an arguable case. I directed that the matter be listed for a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) today. I also made orders for the filing of additional material for the purposes of today’s show cause hearing. Only the Minister has filed additional material. A book of relevant documents was filed on 7 August 2006. I received those documents as evidence for the purposes of today’s hearing.
The court book discloses that on 30 March 2006 the applicant was invited to attend a hearing before the RRT on 16 May 2006. A letter was directed to the address the applicant had nominated for the receipt of correspondence in his review application (court book, page 42).
I note that the applicant continues to use that address. Although not explicitly stated in the show cause application, it appears that the applicant probably received the hearing invitation. The application indicates that the applicant was unable to take advantage of that hearing invitation due to illness. However, as also indicated in the application, the RRT was not notified of any illness.The presiding member dealt with the circumstances in the decision and reasons for the RRT decision on page 54 of the court book.
The presiding member said:
On 30 March 2006 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 May 2006. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.
The letter to the applicant was sent to the address which he nominated as the address to which correspondence about his case should be sent. It is also his residential address. The letter was not returned to the Tribunal, so there is nothing to indicate that it has not, in fact, been received by the applicant. An officer of the Tribunal attempted to contact the applicant using a mobile phone number provided, however the applicant did not return the call.
The Tribunal has complied with its statutory obligation to invite the applicant to attend a hearing. The applicant has not responded to the invitation to attend the hearing, and did not in fact attend the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
On the basis of the available material, I conclude that the exercise of discretion by the RRT pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) is unchallengeable. Neither could it be argued that the RRT breached s.425 of the Migration Act. Neither is any other jurisdictional error apparent on the face of the record.
The RRT in substance decided to affirm the delegate’s decision because of inadequate information provided by the applicant. That decision was open to the RRT on the material before it.I conclude that the show cause application fails to disclose an arguable case. I will therefore dismiss it pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
Costs should follow the event in this case. The applicant did not wish to be heard on costs. Under the court rules $2,500 would be payable by the applicant to the Minister. The Minister has properly sought a lesser amount, namely $1,500. 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 $1,500.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 September 2006
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