SZJVO v Minister for Immigration

[2007] FMCA 565

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJVO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 565

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), s.426A

First Applicant: SZJVO

Second Applicant: SZJVP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG368 of 2006

Judgment of: Driver FM

Hearing date: 16 April 2007

Delivered at: Sydney

Delivered on: 16 April 2007

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms Z McDonald
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. The Court orders that the title of the first respondent be amended to the Minister for Immigration & Citizenship.

2. The application is dismissed, pursuant to rule 4412(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG368 of 2006

SZJVO

First Applicant

SZJVP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  The decision was handed down on 7 November 2006.  The two applicants, who are a husband and wife, from Indonesia sought judicial review of the Tribunal decision by way of a show cause application filed in this Court on 11 December 2006.  In that application they assert notification of the Tribunal decision on 16 November 2006.  On that basis I find that the application was filed within time.

2. The application is supported by a short affidavit annexing the decision of the Tribunal.  The application asserts two grounds.  The first is that there was no evidence or other material to justify the making of the decision and the second is that the applicants are entitled to protection visas.  I have before me a court book filed on 5 February 2007 as well as the Minister’s response filed on 21 December 2006 and procedural orders made by me on 5 February 2007. 

3. The application fails to disclose an arguable case. The second ground simply goes to the merits of the Tribunal decision which is beyond the scope of this proceeding. The no-evidence challenge to the Tribunal decision cannot succeed. The Tribunal decision is based upon the material submitted by the applicants in support of their review application. That material was insufficient for a favourable decision upon the papers and the applicants were invited to attend a hearing before the Tribunal. They responded stating that they wished to attend but they failed to do so. The Tribunal proceeded in the applicants’ absence pursuant to s.426A of the Migration Act. On the basis of the available material, I find that the Tribunal was entitled to do so.

4. The Tribunal found that the applicants’ claims were lacking in crucial details.  Because of that lack of detail, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution in Indonesia.  That finding was open to the Tribunal on the material before it.  I find that the applicants have failed to establish an arguable case of jurisdictional error.

5. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

6. I will also direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship. 

7. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $1,400.  That is substantially less than scale costs for a show cause hearing which is $2,500.  The applicants did not wish to be heard on costs.  I have no difficulty in accepting that costs of not less than $1,400 have been properly and reasonably incurred on behalf of the Minister when considered on a party and party basis.  I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $1,400.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 April 2007