SZJBT v Minister for Immigration

[2006] FMCA 1615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBT v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1615

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)

Applicant: SZJBT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1985 of 2006

Judgment of: Driver FM

Hearing date: 30 October 2006

Delivered at: Sydney

Delivered on: 30 October 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Bird
Phillips Fox

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1985 of 2006

SZJBT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The decision was handed down on 20 June 2006.  The applicant’s show cause application was filed on 18 July 2006.  He asserts notification of the decision on 20 June 2006.  On that basis I find that the application was filed within time.  The applicant is from Turkey and had made claims of political persecution.  He was invited to a hearing by the RRT and attended and gave evidence.  He also produced a witness who provided evidence in support of his protection visa claims.

2. The Tribunal also took into account evidence from other sources. 

   
   

   The Tribunal accepted some of the applicant’s claims, especially in relation to early political activity.  Critically, however, the Tribunal rejected the applicant’s claims of having helped two Kurdish activists in May 2005.  The applicant’s protection visa claims centred on the alleged consequences of his harbouring of those activists. 

   
   

   The applicant failed before the Tribunal because the claims that were central to his protection visa application were rejected on credibility grounds. 

3. The applicant relies upon his original show cause application.  In that application, he asserts jurisdictional error but the particulars given indicate that he is, in reality, challenging the merits of the Tribunal decision.  That impression is reinforced by the nature of the relief sought in the application.  That impression was further reinforced by the applicant’s oral submissions today.  Clearly, he disagrees with the outcome of the proceeding before the Tribunal.  He does not fully understand and certainly does not accept the Tribunal’s reasoning process by which it rejected the core elements of his claims.  However, the applicant was not able to point, in his oral submissions, to any jurisdictional error made by the Tribunal.

4. Neither on my own reading of the Tribunal decision and the other material in the court book is any arguable jurisdictional error apparent to me.  I sought to explain to the applicant the limits on this court’s jurisdiction.  I also adjourned this hearing from 16 October 2006 until today to give the applicant a proper opportunity to consider the material in the court book and to consult legal advisers.  However, it does not appear that that adjournment has proved productive from the applicant’s point of view. 

5. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error. I therefore dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

6. The application having been dismissed, costs should follow the event.  The court rules and scale call for an award of costs at this stage of a migration proceeding in the sum of $2,500.  The Minister seeks a higher amount of $3,300.  That is based on the fact that the show cause hearing commenced on 16 October 2006, but was adjourned to today.  The reason for that adjournment was to ensure that the applicant had a fair opportunity to examine the court book.  I am satisfied that the court book was filed and served in accordance with the court’s directions.  However, I accepted what the applicant told me from the bar table on 16 October 2006 that he had not received it and had not read it prior to that day.  It also appears from what the applicant told me from the bar table that he received advice from his panel adviser in ignorance of the court book, although I have no evidence on that point. 

7. I have come to the view that the additional costs incurred by reason of the adjournment should lie where they fall.  I will not depart from the court scale.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth), fixed in the sum of $2,500.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate: 

Date:  2 November 2006