SZJTA v Minister for Immigration
[2007] FMCA 159
•19 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 159 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of application – no arguable case. |
| Migration Act 1958 (Cth), ss.91R, 424A Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | SZJTA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3464 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 K Hooper DLA Phillips Fox |
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 $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3464 of 2006
| SZJTA |
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 relating to a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 26 October 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant lodged his original show cause application in this Court on 23 November 2006. In that application he asserted actual notification of the Tribunal decision on 3 November 2006. On that basis I find that the application was lodged within time.
The applicant now relies upon an amended application filed on 29 December 2006. That application asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). It also alleges bias and a failure to consider the review application in accordance with s.91R of the Migration Act. The evidence before me is limited to the court book filed on 22 December 2006 and a short affidavit accompanying the applicant’s original application filed on 23 November 2006. That affidavit sets out two grounds of review which I accepted as assertions and attaches the decision of the Tribunal which is reproduced from page 70 of the court book.
The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. He was not believed by the Tribunal. It is clear from the decision record of the Tribunal that the critical factor was the evidence given by the applicant at a hearing conducted by it.
The Tribunal stated that it did not accept the evidence given at the hearing by the applicant that he had been practising Falun Gong since 1996. The Tribunal made adverse credibility findings based upon the applicant’s evidence. There is no arguable case of a breach of s.424A of the Migration Act in the circumstances. The Tribunal decision turned upon the applicant’s own evidence given to the Tribunal for the purposes of the review application. Section 424A(3)(b) therefore applies.
Neither is there any arguable case of a breach of s.91R of the Migration Act. The decision turned upon the Tribunal’s disbelief of the applicant’s claims, not upon any reliance on particular criteria for determining whether the applicant was a refugee. There is no evidence whatsoever to support the claim of bias.
I conclude that the application before the Court fails to disclose an arguable case of jurisdictional error. My own reading of the Tribunal’s decision satisfies me that the decision is succinct, cogent and clear. I see no jurisdictional error apparent on the record of the decision. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Court rules”).
Costs should follow the event. The Court rules and scale of costs provide for costs of $2,500 to be payable at this point in a migration case. The Minister properly seeks a lesser amount of $1,800. The applicant did not wish to be heard on costs.
This was a simple case and it is appropriate to award a lesser amount than is prescribed in the Court’s rules. I accept that costs of $1,800 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application fixed in the sum of $1,800. I will further direct that the title of the Minister be amended to the Minister for Immigration and Citizenship.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 February 2007
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