SZJGS v Minister for Immigration - [2006] FMCA 1801

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1801

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, 91R, 424A

Applicant:

SZJGS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2389 of 2006

Judgment of:

Burnett FM

Hearing date:

4 December 2006

Delivered at:

Sydney

Delivered on:

4 December 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms Z Brauer
Cayton 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 $1,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2389 of 2006

SZJGS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to show cause pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The rules provide that at a hearing on application for an order to show cause the court may, if it is not satisfied the application has raised in an arguable case for relief, then dismiss the application.
In this case the following background facts are relevant. The applicant SZJGS (the “applicant”) made application for a protection visa by an application dated 14 March 2006. The application was accompanied by an application for refugee status, which declaration was made in support of the application on 15 March 2006. The application was received by the Department and receipt was acknowledged by letter of 22 March 2006, a bridging visa was issued.
The application was subsequently assessed by the Delegate who delivered her decision on 7 April 2006 at which time it was decided that the applicant did not meet the requirements of s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) and the prescribed regulations in schedule 2 part 866, Criteria for the Protection Visa. Accordingly, the application was refused.
By an application for review made 9 May 2006, an application was made to the Refugee Review Tribunal (“the Tribunal”) for a review of the Delegate’s decision. The application was made within time and it was a proper application. Acknowledgment of the application was forwarded by the Tribunal to the applicant under cover of letter of 13 May 2006, informing the applicant of his rights and obligations.
By letter of 30 May 2006 the applicant was forwarded an application to attend a hearing of the Tribunal to give oral evidence and present arguments in support of his claim. He was also informed that he could obtain oral evidence from another person or persons. He was notified of a hearing date on 30 June 2006 commencing at 9.00am. In accordance with his entitlement the applicant responded to the hearing invitation with a response to hearing invitation form which was dated 8 June 2006 and which document appears to bear his signature.

The record demonstrates that on the return of the application, the applicant gave evidence by affirmation and from that and subsequent reasons I infer that he appeared and was heard.
On 10 July 2006 the applicant was informed that the Tribunal, having considered all the material relevant to his case, had made its decision and that the decision would be handed down on 27 July 2006.

The decision was notified to him under cover of letter of 27 July 2006 at which time he was informed that the Tribunal had decided that he was not entitled to a protection visa. A copy of the Tribunal’s reasons for decision was attached.
Without rehearsing the full decision record by the Tribunal, the following matters appear relevant. At the hearing, the applicant confirmed his identity and nationality. The applicant was given an opportunity to explain a number of matters. In particular, it was put to him that independent country information indicated he would not be persecuted for practising Buddhism if he returned to China, and he made no comments in relation to that matter.
The Tribunal, having heard evidence from the applicant, made observations in relation to his credibility and, in particular, about the credibility of assertions made by him in relation to assertions of his concern for his safety by reason of his association with Falun Gong. The Tribunal, having weighed up the evidence before it, determined that it was not satisfied he is or was a genuine Falun Gong practitioner and again, without rehearsing all the matters identified by the Tribunal, they formed that view upon evidence in particular given by the applicant himself. The Tribunal’s conclusion was also in part based on inconsistencies apparent from his evidence and from an obvious lack of knowledge about certain matters relevant to Falun Gong practitioners.
The Tribunal also noted that at the hearing the applicant claimed he was no longer a practising Falun Gong member and he is now a Buddhist. There was no evidence before the Tribunal that he would be persecuted in China because of his religion as a Buddhist and the applicant has not made claims in this regard. Upon that basis the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to China.
The application before the Court today was filed on 27 November 2006 and raised one ground, being that the Tribunal failed to carry out its statutory duty. There were two grounds of which the first ground was particularised in five parts. Of the first ground, the first particular was the only information before the Tribunal was that contained in the first respondent’s file and that given to the Tribunal by the applicant.

The second particular was that the Tribunal was required to provide particulars of information that was the reason or part of the reason for affirming the decision and, although not expressed in the application, by inference that the Tribunal failed in that regard.
The third particular was that the particulars noted in paragraph 1(b) had to be provided in writing and again, by inference, that that requirement was not complied with. The fourth particular was that the information to be given extended to that information given by the applicant to the Minister as part of his application for a visa. The fifth particular was that the Tribunal based its finding on information or lack of information contained in the applicant’s application for a visa and that it was required by s.424A of the Migration Act to give particulars of the information and explain why the information was relevant, and provide the applicant with an opportunity to comment upon it.

The fifth item identified within ground 1 appears to be a restatement of paragraph 1(b) of the application.
The second ground identified by the applicant was that the Tribunal relied upon irrelevant materials, in particular, that the country information relied upon by the Tribunal was out of date or based on hearsay and that the Tribunal failed to consider the application according to s.91R of the Migration Act, and failed to consider his claims because of its bias against him and, in general, that the satisfaction that he was not a refugee was not based on a rational and logical foundation.
What the applicant appears to seek today is in the nature of a merits review, which is impermissible under the Act. In terms of the matters identified in its grounds of application, grounds 1 and 2, no adequate particulars are forthcoming. It is difficult to see, in the face of what appears to be a fairly reasoned and considered decision by the Tribunal determining to reject or dismiss his application or how the Tribunal erred.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claim. I dismiss the application.
I order that 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 $1,750.

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

Associate:

Date: 8 December 2006