SZJWV v Minister for Immigration

[2007] FMCA 612

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJWV v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 612

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)

Applicant: SZJWV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3782 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: Mr O Young
Blake Dawson Waldron

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, fixed in the sum of $2,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3782 of 2006

SZJWV

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 to applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  The Tribunal considered those claims but found, after conducting a hearing, that the applicant’s claims lacked credibility.  The Tribunal did not accept that the applicant ever practised Falun Gong.  The Tribunal did not accept that he had ever suffered harm in China because of practising Falun Gong or that he had a well-founded fear of future harm in China for that reason.

2. The Tribunal decision was handed down on 14 November 2006.  The applicant sought judicial review of that decision by way of a show cause application filed on 18 December 2006.  In that application the applicant asserted actual notification of the decision on 23 November 2006.  On that basis I find that the application was filed within time. 

3. The applicant also relies upon an affidavit filed with his application.  In that affidavit the applicant says that he does not want to return to China.  He also attaches the decision of the Tribunal.

4. I gave directions in this matter on 8 February 2007. In particular, I ordered a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and gave directions for the filing of additional material. Nothing further has been filed by the applicant. The Minister has filed a response and a court book filed on 26 February 2007. I received the court book as evidence of what was before the Tribunal and its process. I also received as exhibits a letter from the Minister’s solicitors to the applicant dated 5 March (exhibit R1) and a letter from the Minister’s solicitors to the applicant’s panel adviser dated 13 March 2007 (exhibit R2). Those letters provided information about today’s hearing and provided the book of relevant documents.

5. The applicant could not recall receiving the letter from the solicitors but said that he did receive correspondence from his panel adviser, Mr Michael McAuley.  It appears that Mr McAuley was inviting the applicant to attend an interview, although the applicant could not understand what was in the letter.  He apparently did not attend that interview.  I infer that Mr McAuley had received the Minister’s solicitor’s letter to him dated 13 March 2007.  The letter to the applicant was directed to the address for service shown on his application.  The applicant told me that that was the address of his migration agent.  The applicant confirmed that his migration agent is the same as the agent he engaged before the Tribunal, that is Mr Songtao Lu of the Sydney Migration Education Centre.

6. The applicant told me that he received this morning from his migration agent a copy of the court book.  It was obvious, however, that he had been given the wrong one.  I do not know who is responsible for the error but is more likely that the agent is responsible.  It is hard to believe that if the Minister’s solicitors had forwarded to him the wrong court book that he would not have alerted the Minister’s solicitors to such a mistake.  There was obviously no purpose in giving the applicant the wrong court book and the circumstances are troubling.  It is a matter for the applicant and the Minister to consider what further action may be required because of the apparent error made, possibly by the migration agent.  I have provided the applicant with a copy of the correct court book for the purposes of today’s hearing.

7. The applicant was unable to expand in any meaningful way on the grounds of review in his application.  They are, that a breach of the rules of natural justice occurred in relation to the making of the decision; that the decision involved an error of law; and that the Tribunal could not make the decision without further evidence or information.  The first two grounds are meaningless in the absence of particulars.  The third ground is hopeless.  The Tribunal decision, on its face, records that the Tribunal gave thorough consideration to the applicant’s claims and the material he presented supporting them. 

8. The Tribunal had regard to country information but it was entitled to do so.  The Tribunal was entitled to make the decision it did on the basis of the material available to it.  On my reading of the court book, including the Tribunal decision, no jurisdictional error is apparent to me.  I conclude that the applicant has failed to identify any arguable case of jurisdictional error. 

9. I therefore dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.

10. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $2,250.  The applicant did not wish to be heard on costs.  I accept that costs of $2,250 had been reasonably and properly incurred on behalf of the Minister on a party and party basis.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount. 

11. I note that I made an order correcting the title of the Minister on
    8 February 2007.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  27 April 2007