SZJEL v Minister for Immigration
[2006] FMCA 1598
•27 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJEL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1598 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Migration Act 1958 (Cth), ss.424A, 425 Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | SZJEL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2183 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 27 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Palmer Clayton Utz |
INTERLOCUTORY 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, including any reserved costs, fixed in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2183 of 2006
| SZJEL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application relating to 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 4 July 2006. In his show cause application filed on 9 August 2006 the applicant asserted notification of the Tribunal decision on 13 July 2006. On that basis I find that the show cause application was filed within time.
When this matter first came before me on 8 September 2006, it was not apparent to me whether the show cause application disclosed an arguable case. I ordered that there be a show cause hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). I also made orders for the filing of additional material. I gave the applicant the opportunity to file and serve additional affidavit evidence, including a transcript of the Tribunal hearing, by 13 October 2006. The Minister filed a court book on 20 September 2006.
The applicant filed an affidavit on 9 August 2006 with his original application which simply annexed a copy of the decision of the Tribunal, which also appears in the court book.
The applicant did not take advantage of the opportunity to file further affidavit evidence. He did, however, take advantage of the opportunity I gave him to file and serve an amended application by the same date. That is the application upon which he relies. It appears from what the applicant told me from the bar table that he was assisted in the preparation of his applications to the court by Mrs Priscilla Yu who was the migration agent assisting him before the Tribunal.
In the amended application three grounds of review are raised.
The first is that the presiding member failed to consider the applicant’s claim and misunderstood it. The applicant also asserts an error of fact. It is apparent from the particulars that are given that the applicant is dissatisfied with the consideration given to his claims by the Tribunal. However, it is obvious from the record of the Tribunal decision and reasons that his claims were considered. It is also apparent on the face of the decision record that the applicant’s claims were understood.
I see on the face of the record no factual error having any jurisdictional significance.
The amended application seeks to rely upon the UNHCR handbook but that handbook is not required to be followed by the Tribunal. Indeed, the passage quoted in the amended application refers to applicants bearing an onus of proof which is inconsistent with Australian law. The final particular in ground 1 appears to assert bias. There is nothing in the available material to support that allegation.
The second ground is an asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The amended application asserts that an obligation of disclosure arose in relation to a letter from the Rev Dominic Ku provided in support of the review application. However, as is acknowledged in the first particular to ground 2, that letter was submitted by the applicant to the Tribunal in support of his review application. The information in it therefore fell within the exception in s.424A(3)(b) of the Migration Act. There is no arguable case of a breach of s.4242A.
Thirdly, the amended application asserts a breach of s.425 of the Migration Act. The particulars, however, make tolerably clear that this is simply a contest over the merits of the Tribunal decision.
The Tribunal met its statutory obligation to invite the applicant to a hearing. He attended and gave evidence. He was assisted by an interpreter. There is no arguable case of a breach of s.425.
In his oral submissions the applicant raised other matters. First, he asserted that he was never advised of the Tribunal decision and reasons. That is patently untrue. First, page 80 of the court book discloses that a copy of the decision was sent to the applicant’s migration agent on 4 July 2006. Secondly, a copy of the decision was provided by the applicant to the court with his original show cause application.
Next, the applicant alleged that there were interpretation problems at the hearing. However, as I pointed out to the applicant, he has not taken up the opportunity to provide any evidence that might have supported that assertion. The applicant also asserted that the presiding member was angry with him for not bringing his passport to the Tribunal hearing and that the presiding member displayed a dislike of him.
I have already stated that there is no evidence before me to support an allegation of bias. It is true that the applicant failed to bring his original passport to the Tribunal hearing. However, the applicant provided his passport to the Tribunal after the hearing, see the court book page 91. The only conclusion that I can see in the Tribunal’s findings and reasons based upon the information in the passport was a favourable one. The Tribunal accepted from the information in the passport that the applicant is a Chinese national.
I see no arguable case of jurisdictional error in the decision of the Tribunal. I therefore dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Costs should follow the event. The Minister seeks scale costs. The applicant did not wish to be heard on that issue. 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, fixed in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 1 November 2006
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