SZJEW v Minister for Immigration

[2006] FMCA 1569

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJEW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1569

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.36, 65, 420, 424, 426A

Applicant: SZJEW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2222 of 2006

Judgment of: Driver FM

Hearing date: 23 October 2006

Delivered at: Sydney

Delivered on: 23 October 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr I Muthalib
Blake Dawson Waldron

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, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2222 of 2006

SZJEW

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 a show cause application filed on 11 August 2006. That application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 18 July 2006. 

   
   

   The application asserts notification of the Tribunal decision on 21 July 2006.  On that basis I find that the show cause application was filed within time. 

2. The applicant is from China and had made claims of religious persecution.  The decision of the Tribunal is relatively brief and simple.  Essentially, the Tribunal considered that it had insufficient material before it to permit it to make a decision in the applicant’s favour. 

   
   

   It was critical to the outcome before the Tribunal that the applicant had been invited to attend a hearing but had neither responded to that invitation nor attended the hearing to which he was invited. 

3. The applicant relies upon his show cause application and a supporting affidavit to which is attached a statement setting out his grounds for review.  Although that statement refers to the decision of the Minister’s department, the applicant asked me to treat those references as references to the decision of the Tribunal.

4. The statement asserts recklessness on the part of the Tribunal and harshness in deciding to proceed in his absence. It also asserts a breach of s.420 of the Migration Act 1958 (Cth) (“The Migration Act”). Further grounds are asserted in the body of the affidavit. Reference is made to s.424 of the Migration Act as well as ss.36 and 65 of that Act and the common law rules of procedural fairness.

5. The applicant asserted in his oral submissions today that he had sent additional material to the court on or about 8 October 2006.  There is no record of any such material being received by the court either on the court file or on the court’s computer database.  The applicant conceded that he had not sent a copy of that material to the Minister’s solicitors.  He said that the document or documents had been written by a friend.  He did not have a copy with him. 

6. I understood from his submissions that the point he was seeking to make was that I should not proceed in the absence of that additional information.  I elected to proceed for several reasons. The first is that there is no evidence that the additional material actually exists. 

   
   

   The second is that the Tribunal decision appears simple and the relevant issues centre upon the absence of the applicant from the hearing to which he was invited.  Thirdly, although the applicant was not able to explain in any detail what was in the additional material, he indicated that it had something to do with his claims of persecution. 

   
   

   I told him that if that was so, the material would be unlikely to assist him because the question of whether the applicant is a refugee or not is beyond the scope of this proceeding. 

7. I discussed the grounds of review in the affidavit and accompanying statement with the applicant.  Mr Muthalib, who appeared on behalf of the Minister, did not wish to be heard beyond asserting that the applicant had failed to disclose an arguable case.  I received as evidence for the purpose of today’s hearing the book of relevant documents filed on 21 September 2006.  The applicant denied receipt of those documents although he acknowledged receipt of the letter which provided them, exhibit R1.  I gave the applicant the original file copy of the book of relevant documents for the purposes of today’s hearing. 

8. The applicant also asserted to Mr Muthalib, before I came on the bench, that he had not received advice from the adviser appointed to assist him under the Minister’s Panel Advice Scheme.  However, the court’s correspondence file discloses that Ms Hoeben informed the court on 12 October 2006 that she had provided written advice to the applicant on that day after attempts by her to contact him were unsuccessful.  The applicant conceded that he had received correspondence from Ms Hoeben.  I conclude that he has received advice under the panel advice scheme. 

9. In my view, none of the grounds of review asserted by the applicant disclose an arguable case.  The decision of the RRT refers to the hearing invitation sent to the applicant.  That hearing invitation appears in the court book at page 47.  It was sent to the applicant at his nominated address for service which I note is the same address for service he continues to use.  Sufficient notice of the Tribunal hearing appears to have been given.  There is nothing in the court book to indicate any response from the applicant to that hearing invitation.  Neither is there any indication that the hearing invitation was returned unclaimed.  The presiding member noted those circumstances in her decision at page 56 of the court book.

10. The presiding member also noted that the applicant had not appointed anyone to assist him and that there was no other means of contacting him. In those circumstances it was understandable why the Tribunal elected to proceed in the absence of the applicant pursuant to s.426A of the Migration Act. I see no error in that regard. The Tribunal did not have at the time of its decision any more information than it had at the time the applicant was invited to a hearing. The applicant had been put on notice in that hearing invitation that the Tribunal had insufficient material to enable it to make a favourable decision.

11. That position remained unchanged and the outcome was almost inevitable. The Tribunal’s reasons indicate that it concluded that it was not open to it on the material before it to make a favourable decision because it could not achieve the requisite state of satisfaction for the purposes of s.65 of the Migration Act. There is no error in the approach taken by the Tribunal. In my view, there is no arguable case of jurisdictional error advanced by the applicant or apparent on the face of the available material. Accordingly, I order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

12. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the amount of $2,000.  The applicant did not wish to be heard on costs.  Scale costs at this stage of the proceeding would be $2,500.  It is proper for the Minister to seek a lesser amount.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the amount of $2,000.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate: 

Date:  26 October 2006