SZJWD v Minister for Immigration

[2007] FMCA 616

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJWD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 616

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

Migration Act 1958 (Cth), ss.424, 424A

Applicant: SZJWD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3723 of 2006

Judgment of: Driver FM

Hearing date: 23 April 2007

Delivered at: Sydney

Delivered on: 23 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Gazi
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3723 of 2006

SZJWD

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 decision was handed down on 14 November 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from China and made claims of persecution apparently as a result of some industrial activity at his workplace.  The Tribunal rejected his claims.  In particular, the Tribunal noted that the applicant’s evidence at a hearing conducted by the Tribunal was sparse, vague and inconclusive. 

3. The applicant sought judicial review of the Tribunal decision by way of a show cause application filed on 13 December 2006.  In that application he asserted actual notification of the Tribunal decision on 23 November 2006.  On that basis I find that the application was filed within time.  The applicant continues to rely on that application and on a supporting affidavit filed at the same time.  I treated the affidavit as a submission.  The applicant also relies upon an amended application filed on 9 March 2007.  There is overlap between the two applications.  The Minister’s response is that the applicant has failed to disclose an arguable case of jurisdictional error in either application. 

4. There is no substance to any of the grounds of review advanced by the applicant. Both applications assert a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). At the hearing this afternoon the applicant was, however, unable to identify any information that the Tribunal wrongfully failed to disclose. On my reading, the Tribunal decision turned upon the applicant’s evidence presented at the hearing conducted by the Tribunal. The Tribunal also had regard to country information. Neither the country information nor the applicant’s own evidence required disclosure under s.424A.

5. Both applications also assert bias. When I asked the applicant why he thought the Tribunal was biased, he referred to s.424, or possibly 424A, of the Migration Act. As I pointed out to the applicant, however, even if those sections had been breached, that would not of itself establish bias. The original application asserts that the Tribunal failed to deal with a particular social group claim made by the applicant. When I asked the applicant what social group he claimed to belong to, he did not know. It appears to me from the book of relevant documents which I received as evidence that the Tribunal considered the claims that were made by the applicant.

6. The amended application asserts that the Tribunal failed to consider the applicant’s claim of membership of the Falun Gong organisation.  However, the applicant admitted from the bar table this afternoon that he had made no such claim to the Tribunal.  As I explained to the applicant, there is no obligation on the Tribunal to consider claims that are not made.  Finally, the amended application asserts that the Tribunal decision was not based on evidence.  However, it is clear that the Tribunal decision was based on the evidence given by the applicant himself.  The conclusions reached by the Tribunal on the applicant’s evidence and claims were open to it on the material before it. 

7. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error in the Tribunal decision. 

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

9. Costs should follow the event in this case. The Minister seeks scale costs. The applicant continued to assert error on the part of the Tribunal and indicated he wished to appeal. I see no reason to depart from the Court scale of costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  27 April 2007