SZKFF v Minister for Immigration

[2007] FMCA 1060

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKFF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1060

MIGRATION – claims lacking in detail – insufficient evidence – no arguable case.

Migration Act 1958 (cth), s.476
Federal Magistrates Court Rules 2001, rr.44.11(a), 44.12

Applicant: SZKFF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 498 of 2007

Judgment of: Turner FM

Hearing date: 6 March 2007

Date of last submission: 6 March 2007

Delivered at: Sydney

Delivered on: 6 March 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr O’Brien of DLA Phillips Fox

ORDERS

1. The application is dismissed pursuant to Rule 44.12(1)(a) on the basis that no arguable case has been raised.

2. That applicant is to pay the costs of the first respondent fixed in the amount of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 498 of 2007

SZKFF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks an order that the respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated

   
   

   21 December 2006 and handed down on 18 January 2007. The respondents oppose the application on the basis that no reasonable cause of action is shown.

2. The Court ordered, pursuant to r.44.11(a), that there be an immediate hearing under r.44.12 to determine if the application raises an arguable case. The Court was prepared to adjourn the hearing to enable the applicant to put further written material to the Court, but the applicant decided that he did not want the hearing adjourned.

3. The applicant claims to be a practitioner of Falun Gong and that he will be persecuted if he returns to China.

4. The applicant listed three grounds in his application for an order to show cause:

   (1)Jurisdictional error has been made.

   (2)Procedural fairness has been denied.

   (3)The Refugee Review Tribunal did not give me a letter to explain doubts.

5. The Court finds that the decision of the Tribunal to affirm the decision of the delegate of the Minister was based on its findings that the applicant provided no documentary evidence of his claims to be a Falun Gong practitioner (Decision Record “DR” 6.1). The applicant provided no documentary evidence of his claims of his feared persecution (DR 6).

6. The Tribunal stated that “the claims before the Tribunal are lacking in essential detail” (DR 6.2). The Tribunal further stated that

   On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well‑founded fear of persecution within the meaning of the Convention if he returns to China in the foreseeable future.

   Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.

7. The Court finds no error of law or denial of natural justice in the decision of the Tribunal or in the proceedings before it. The Court finds that the application does not raise an arguable case for the relief claimed and dismisses the application pursuant to r.44.12(1)(a).

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

Acting Associate: Mary Giang 

Date: 5 July 2007