SZKCV v Minister for Immigration

[2007] FMCA 700

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKCV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 700

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, s.424A

First Applicant: SZKCV

Second Applicant: SZKCW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG331 of 2007

Judgment of: Driver FM

Hearing date: 10 May 2007

Delivered at: Sydney

Delivered on: 10 May 2007

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms K Hooper
DLA Phillips Fox

INTERLOCUTORY ORDERS

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

2. 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

SYG331 of 2007

SZKCV

First Applicant

SZKCW

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 decision was signed on 14 December 2006 and was handed down on 9 January 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  The applicants are from India and had made claims of religious persecution.  The Tribunal invited the applicants to attend a hearing and the first applicant did attend and gave evidence. 

2. The Tribunal did not accept the first applicant as a witness of truth and rejected his claims of attacks upon him by Muslims as he had alleged.  The Tribunal also considered a claim by the second applicant, the first applicant’s wife, of membership of a particular social group but found that neither applicant had a well-founded fear of persecution in India.

3. These proceedings began with a show cause application filed on 1 February 2007.  The applicants in that application asserted actual notification of the Tribunal decision on 9 January 2007.  I find that the application was filed within time.

4. The applicants now rely upon an amended application filed on 4 April. 2007.  They continue to rely upon the affidavit filed with the original application.  I also have before me as evidence a court book filed on 21 March 2007. 

5. At the outset of today’s hearing the first applicant raised an issue of concern about service of the court book.  He noted that at the directions hearing I conducted on 22 February 2007 I had ordered the Minister to file and serve the court book by 8 March 2007.  It was filed late and the first applicant said that he did not receive a copy of it until 27 March 2007.  He said that this had disadvantaged him in the preparation of his amended application and that he had not access to legal advice.  As I pointed out to the first applicant, his amended application was filed before the due date of 13 April 2007.  The applicants have also not taken advantage of the liberty to apply granted in order 7 made by me on 22 February 2007.  The applicants have also had the advantage of panel advice, which the correspondence file records was given by Mr Radha Nair, on 16 April 2007.  I find that the applicants have not been prejudiced by the late filing and service of the court book.

6. The amended application asserts a breach of s.424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”). However, the particulars do not identify in any coherent way the information that the Tribunal relied upon which was allegedly not disclosed. In its decision (court book, page 124) the Tribunal relied upon two inconsistencies between what the applicants had told the Tribunal and what the first applicant had put in his protection visa application. That information was disclosed to the applicants by letter dated 13 October 2006 (see court book, pages 102 and 103). I am satisfied that that letter met the Tribunal’s disclosure obligation under s.424A. There was no other information relied upon by the Tribunal that required disclosure under the section. Neither is any other jurisdictional error in the Tribunal decision apparent to me.

7. I find that the applicants have failed to demonstrate an arguable case of jurisdictional error. I will therefore order, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), that the application be dismissed.

8. The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The first applicant is concerned about his capacity to pay but that is not a reason for the Court to refrain from making a costs order. I see no reason to depart from the Court’s scale of costs in this matter. 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 the Part 2 of Schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 May 2007