SZKMC v Minister for Immigration

[2007] FMCA 900

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKMC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 900

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 (Cth), ss.424A, 425

Applicant: SZKMC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1138 of 2007

Judgment of: Driver FM

Hearing date: 8 June 2007

Delivered at: Sydney

Delivered on: 8 June 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Cox
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 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

SYG1138 of 2007

SZKMC

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 signed on 13 February 2007 and was handed down on 6 March 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of persecution based upon his practice of Falun Gong.  He arrived in Australia on 25 July 2006 and applied to the Minister’s Department for a protection visa on 21 August 2006.  The delegate refused that application on 20 October 2006.  The applicant sought review by the Tribunal of that decision on 21 November 2006.  He was invited to a hearing and appeared before the Tribunal on 7 February 2007.  The Tribunal considered his claims and rejected them on credibility grounds.  The Tribunal did not accept the applicant as a witness of truth. 

2. The Tribunal found on page 94 of the court book, which I received as evidence for today’s hearing, that the applicant’s lack of understanding of the exercises fundamental to the practise of Falun Gong strongly indicates to the Tribunal that the applicant is not a Falun Gong practitioner and that his claims had been fabricated in an attempt to effect Australia’s protection obligations.

3. In reaching its decision the Tribunal took into account an opinion by Dr Adrian Chen concerning the ability of persons wanted by the Chinese authorities to leave China.  The Tribunal found at page 93 of the court book that if the applicant did have a profile as a Falun Gong practitioner in China, he would not, based on country information, have been able to leave China in 2005 and return without incident.  The evidence presented by the applicant to the Tribunal indicated that that is what he had done. 

4. These proceedings began with a show cause application filed on 5 April 2007.  In that application the applicant asserts actual notification of the Tribunal decision on 15 March 2007.  On that basis I find that the application was filed within time.  The application is supported by a short affidavit annexing a copy of the Tribunal’s decision.  In that affidavit the applicant states that he is a real Falun Gong practitioner.  I received that statement as a submission.  I also have before me the Minister’s response filed on 23 April 2007 and the court book filed on 8 May 2007.

5. This matter came before me for first court date directions on 26 April 2007.  At that time I was concerned that the application did not engage properly the jurisdiction of the Court in that it did not assert any jurisdictional error by the Tribunal.  I made orders giving the applicant the opportunity to file and serve an amended application and additional affidavit evidence by 31 May 2007.  He has not taken up that opportunity. 

6. The application asserts that the decision of the Tribunal involved an important exercise of the power conferred by the Migration Act 1958 (Cth) and the Migration Regulations.  I agree and I would be surprised if there was any dispute by the Minister.  Secondly, the applicant asserts that he is entitled to a protection visa.  As I pointed out to the applicant, that is beyond the scope of these proceedings.  Thirdly, the applicant asserts that he meets the refugee criteria because he faces a risk of being gaoled if he returns to China.  Again, as I pointed out to the applicant, that is for the Tribunal to decide, not this Court. 

7. In his brief oral submissions the applicant made clear that he disagrees with the Tribunal decision. He submitted that the Tribunal did not give careful consideration to his claims. However, when I asked him why he thought the Tribunal’s consideration was careless, he simply referred to the adverse credibility findings. In my view, the findings made by the Tribunal were open to it on the material before it. There does not appear in this case to be any issue concerning the Tribunal’s compliance with the procedural code including ss.425 and 424A. It does not appear to me that the opinion given by Dr Adrian Chen required disclosure under s.424A as it appeared to relate merely to a class of persons including the applicant.

8. The applicant has not asserted any jurisdictional error by the Tribunal and none is apparent to me from my perusal of the material. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

9. The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant did not wish to be heard on 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 of 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:  13 June 2007