SZJYN v Minister for Immigration - [2007] FMCA 637

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJYN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 637

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

Migration Act 1958 (Cth), s.424A

First Applicant:

SZJYN

Second Applicant:

SZJYO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG5 of 2007

Judgment of:

Driver FM

Hearing date:

26 April 2007

Delivered at:

Sydney

Delivered on:

26 April 2007

REPRESENTATION

The First Applicant appeared in person and on behalf of the Second Applicant

Solicitors for the Respondents:

Ms G Broderick
Clayton Utz

INTERLOCUTORY ORDERS

The Court directs that exhibit A1 is returned to the applicant.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are 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

SYG5 of 2007

SZJYN

First Applicant

SZJYO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 5 December 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant and his wife protection visas. The relevant claims were made by the first applicant, and the second applicant, his wife, claimed as a member of his family.
The applicants are from India and the first applicant made claims of political persecution. The first applicant had made claims of political persecution. In these reasons references to “the applicant” are to him. The applicant’s claims were rejected by the Tribunal. The Tribunal did not accept that the applicant had any political profile in India. The applicant also claimed persecution as a member of the Patel social group. That claim was also rejected by the Tribunal.
The present proceeding began with a show cause application filed on 2 January 2007. In that application the applicants asserted notification of the Tribunal decision on 13 December 2006. I find that the application was filed within time. The application was supported by an affidavit filed on the same day which I accepted today as a submission. I also have before me the Minister’s response and a court book filed on 22 March 2007. I received the court book as evidence. I also accepted into evidence a letter and identity card and Australia Post receipt which I marked as an exhibit (exhibit A1). The first applicant sought to tender other documents but I returned them on the basis that copies of them appeared in the court book. The first applicant appeared on his own at today’s hearing and told me that he appeared also on behalf of his wife.
The application asserts various grounds, some of which are numbered and some of which are not. With the exception of the last ground, the grounds all attack the decision of the Tribunal and the last ground is a general assertion of procedural incorrectness or error. None of the grounds are particularised and it is apparent from the applicant’s oral submissions today that his real concern is with the outcome of his review application before the Tribunal. He is concerned that his claims were not accepted.
Exhibit A1 includes an identity card which the applicant told me is a BJP identity card. It appears that the applicant has presented that identity card in order to deal with the Tribunal’s finding that the applicant had failed to produce to it proof of his membership of the BJP. On page 128 of the court book the Tribunal expressed concern that the applicant had not been able to produce any party documents or an identification card to indicate his association with or membership of the party. The identity card now presented to the Court is produced under cover of a letter dated 10 April 2007. The applicant told me from the bar table that he had only received the identity card on 15 April 2007, but on whatever date he received it, it was not available to the Tribunal.
The applicant sought the opportunity to produce other documents in order to support his protection visa claims. I explained to him, however, that such further documents as may become available would be better directed to the Minister through his Department. The Tribunal will not have the opportunity to further consider the applicant’s claims unless the Tribunal decision is infected by jurisdictional error.
Although the application seeks to raise issues of jurisdictional error there is no substance to the grounds contained in the application. It is plain from the decision of the Tribunal that it did consider whether the applicant’s claims were Convention related and it did consider the merits of those claims. It is plain that the Tribunal did consider the facts in issue and considered whether the applicant’s fears had a Convention based nexus. The applicant accuses the Tribunal of “generalising his claims with its own views”, whatever that may mean. If it is intended to be an allegation of bias there is no evidence to support it. There is nothing in the court book to support the assertion of procedural incorrectness or error.
The applicant sought the opportunity for more time to support his application to the Court. He placed emphasis on the fact that the court book was not filed until 22 March 2007 and was not received by him until some days later. He considers that he has had insufficient time to prepare for today’s hearing. In particular, he asserts that he has not been given enough time to have the documents in the court book translated for him so that he could understand them. I declined to adjourn this hearing on the basis that the documents in the court book were documents from the applicant himself or documents from the Minister’s Department or the Tribunal that the applicant was already aware of. In my view there is nothing in the court book which would come as a surprise to the applicant.
I note that the court book was sent to the applicant’s panel adviser, Mr Gregory Sarginson, on 5 April 2007. The applicant told me from the bar table that he had not contacted Mr Sarginson in order to receive the legal advice he had been offered because he saw no point in doing so without obtaining a more detailed understanding of the court book. The applicant probably would have been better advised to be more active in obtaining the advice he was offered. Nevertheless, I accept that he may have suffered some disadvantage through delay in the receipt of the green book and due to the fact that he is currently living and working in far western New South Wales near Wentworth and Mildura. In those circumstances, I have considered for myself whether any arguable case of jurisdictional error may be seen to arise from the court book. I see no such arguable case.
The Tribunal met its statutory obligation to invite the applicant to a hearing when it could not be satisfied on his written claims. Indeed, the Tribunal adjourned its hearing twice, first when the applicant complained of illness and secondly when he complained of other personal difficulties. The Tribunal was unimpressed with the applicant’s evidence at the oral hearing that he attended. The Tribunal decision turned on the information the applicant gave to the Tribunal. Accordingly, there was no relevant obligation on the Tribunal to invite from the applicant comment on that information pursuant to s.424A(1) of the Migration Act 1958 (Cth).
The adverse findings made by the Tribunal on the applicant’s claims were available to it on the material before it. The applicant now has, or expects in the future to have, additional information to support his claims of a well-founded fear of political persecution in India. Importantly, he is now able to produce the BJP membership card that he was unable to produce to the Tribunal. In the absence of jurisdictional error, it is for the Minister to consider, if he wishes, whether that additional information calls for additional consideration of the applicant’s protection visa claims.
I see no jurisdictional error arguable in the decision of the Tribunal or its process. 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”) .
I will direct that exhibit A1 be returned to the applicant. I note that I have already dealt with the title of the Minister.
The Minister seeks an order for costs in the sum of $2,500 in accordance with the Court scale. The applicant queried his rights of appeal and also asserted that he is unable to pay any costs. I note that the applicant has also said that he is working, but even if he is impecunious that is not a reason for the Court to refrain from making the costs order. I see no reason to depart from the Court scale of costs.
I will order that the applicants 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 2 May 2007