SZJUS v Minister for Immigration - [2007] FMCA 555

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJUS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 555

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)

Applicant:

SZJUS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3597 of 2006

Judgment of:

Driver FM

Hearing date:

16 April 2007

Delivered at:

Sydney

Delivered on:

16 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms G Broderick
Clayton Utz

INTERLOCUTORY ORDERS

The Court directs that the title of the Minister be amended to the Minister for Immigration & 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 costs and disbursements of and incidental to the application, fixed in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3597 of 2006

SZJUS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 9 November 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant sought judicial review of that decision by way of a show cause application filed on 5 December 2006. In that application she asserted notification of the decision on 14 November 2006. On that basis I find that the application was filed within time.
I accept that the Minister's title needs to be amended. I will direct that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
The application was supported by an affidavit which repeated the grounds for review set out in the application. Those grounds are first, that the Tribunal disregarded that fact that the applicant's protection visa application was refused but she asserts she was a genuine Falun Gong practitioner. Secondly, the application asserts that the Tribunal just followed the delegate's decision rather than considering the applicant's evidence. Thirdly, the application asserts that the Tribunal did not fully disclose the details of the application and simply made a judgment not using all of the facts. I take it that these grounds include an assertion that the Tribunal overlooked relevant material.
This matter came before a registrar on 20 December 2006 for the first time. At that time the applicant attended in person with the assistance of a Mandarin interpreter and her sister. It is apparent that the applicant's sister also played a role in the conduct of the review application before the Tribunal. Although the applicant speaks and understands some Mandarin, her first language is a regional dialect. Her sister has assisted the applicant in order to deal with that communication difficulty.
On 20 December 2006 the registrar gave orders for the preparation of this matter for a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The Minister filed a court book on 22 December 2006 which I received today as evidence without objection. The applicant filed written submissions on 27 March 2007. These were handwritten in the Chinese language but included what purports to be a typed English translation.
In those submissions the applicant asserts that she is a genuine Falun Gong practitioner and that she would suffer persecution in China should she return there. It is obvious that the applicant is concerned about the merits of the Tribunal's decision. However, there is no substance in the grounds of review advanced in the application. The Tribunal had regard to the delegate's decision but did much more than simply follow it. The Tribunal considered the applicant's claims but was not persuaded by them.
As it stated in the Tribunal decision (court book, page 99) on 15 September 2006 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 October 2006. On 9 October 2006 the applicant advised the Tribunal that she wanted to give oral evidence. On 11 October a woman describing herself as the applicant's sister rang the Tribunal to say that the applicant was sick and would not be able to attend the hearing. She was asked to provide a medical certificate which subsequently arrived by fax indicating that the applicant "will be unfit to continue her usual occupation" for two days. Later that day a further phone call was made to the applicant's sister with whom the applicant was living. She was told that the presiding member of the Tribunal had agreed to a postponement. A time and date was agreed for the postponed hearing which was confirmed in a letter sent that day to the applicant by express post. However, the applicant did not attend the hearing or contact the Tribunal to explain her failure to attend.
At the hearing before me today neither the applicant nor her sister disputed the accuracy of that statement of facts by the Tribunal. The applicant's sister told me from the bar table that she had previously shown the applicant where the Tribunal was located. However, on the day arranged for the adjourned Tribunal hearing the applicant's sister had to work and sent the applicant to the Tribunal alone. The applicant's sister told me that the applicant got lost and, because she was unable to communicate in English, no contact was made with the Tribunal. While those circumstances, if true, are unfortunate, the Tribunal discharged its obligation to invite the applicant to a hearing. The Tribunal was not put on notice of anything warranting a further adjournment. The Tribunal was entitled, in the circumstances, to proceed to make a decision without a hearing being conducted.
It is obvious from a reading of the Tribunal decision that the Tribunal simply had insufficient material before it in order to grant the visa the applicant sought. Because the Tribunal was unable to be persuaded that the applicant's claim should be accepted the Tribunal was bound to affirm the delegate's decision.
No error in the Tribunal's decision, or its process leading up to it, is disclosed. I find that the applicant has failed to establish an arguable case of jurisdictional error. Accordingly I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Minister seeks costs fixed in the sum of $2,200. That is slightly less than the scale costs for a show cause hearing of $2,500. I have no difficulty in accepting that costs of $2,200 have been properly and reasonably incurred on behalf of the Minister on a party and party basis. The applicant's sister states that the applicant is impecunious but, as I explained to her, that is not a reason for the Court to refrain from making a costs order.
The applicant is to pay the costs and disbursements of and incidental to the application, fixed in the sum of $2,200.

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

Associate:

Date: 18 April 2007