SZJRE v Minister for Immigration
[2007] FMCA 158
•19 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJRE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 158 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of application as disclosing no arguable case. |
| Migration Act 1958 (Cth), s.424A Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | SZJRE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3301 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 19 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms Z Brauer Clayton Utz |
INTERLOCUTORY ORDERS
The name of the first respondent be changed to “Minister for Immigration and Citizenship”.
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 $1,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3301 of 2006
| SZJRE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application in relation to a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 17 October 2006. The show cause application was filed on 13 November 2006 and asserts actual notification of the decision on 17 October 2006. I find that the show cause application was filed within time.
The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had claimed political persecution in China. That claim centred upon his assertion of having taken two copies of the publication, Nine Commentaries on the Communist Party to China, which had been discovered by the authorities.
His claims were set out in a statement translated into the English language which accompanied his protection visa application. That statement is reproduced on page 27 of the court book, which I received as evidence for the purposes of today’s hearing. The applicant repeated this statement in identical terms with his review application. The statement appears again on page 88 of the court book.
The other evidence I have before me is limited to the applicant’s affidavit filed in support of his show cause application on 13 November 2006. That simply annexed the copy of the decision of the Tribunal, which is reproduced in the Court book from page 109.
Directions in this matter were given by a registrar on 6 December 2006. The orders made by the registrar gave the applicant the opportunity to file and serve additional affidavit evidence, including a transcript of the Tribunal hearing, as well as an amended application, by 9 February 2007. The applicant has not taken up either opportunity.
He appeared today and after some prompting from me made oral submissions in support of his application.
The applicant faces two main difficulties which I explained to him. The first is that his show cause application simply takes issue with the decision of the Tribunal. It does not assert any jurisdictional error. The second problem is that although it is clear from what the applicant told me orally today that he does not consider that he had a fair opportunity to present his claims to the Tribunal, there is no evidence to support that assertion.
The applicant failed before the Tribunal because he was not believed. In particular, the Tribunal rejected his core claim that he took copies of the book Nine Commentaries on the Communist Party to China and that his family has suffered as a result. In reaching that adverse credibility finding, the presiding member compared what the applicant had said at the oral hearing conducted by him with what the applicant had said in his written statement.
No notice under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) was given in this case. None needed to be given because the statement relied upon by the Tribunal was presented by the applicant to the Tribunal in support of his review application.
The applicant is concerned that he was confused at the hearing and anxious because he had arrived without any understanding of what was to occur. He acknowledges receipt of the hearing invitation that had been sent to him (see court book pages 92 and 93) and he confirmed that he did not respond in writing to that invitation (see court book pages 94 and 95).
He told me from the bar table that on the day scheduled for the hearing he attended the Tribunal but was confused because nothing appeared to be happening. That is understandable given his failure to respond to the hearing invitation. It appears that the applicant spoke to an interpreter and that with the assistance of Tribunal staff a hearing was arranged which commenced at 12.40 pm (see court book page 100). There is, however, no evidence before me that the applicant suffered any prejudice as a result of any confusion that may have occurred.
I am satisfied that the hearing conducted by the Tribunal was more than an empty shell or empty gesture. The record of the Tribunal decision discloses that the applicant was questioned in some detail about his claims. There is nothing in the available evidence to indicate that the applicant was confused or inhibited in his replies. I am unable to discern from the record of the Tribunal proceeding any arguable case of jurisdictional error.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). I will also direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship.
Costs should follow the event in this case. Scale costs at this point in a proceeding in this court in its migration jurisdiction would be $2,500. The Minister properly seeks a lesser amount of $1,900. The applicant did not wish to be heard on costs. I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application fixed in the amount of $1,900.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 February 2007
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