SZKMJ v Minister for Immigration - [2007] FMCA 933

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKMJ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 933

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.91R, 424A

Applicant:

SZKMJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1155 of 2007

Judgment of:

Driver FM

Hearing date:

18 June 2007

Delivered at:

Sydney

Delivered on:

18 June 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms L Gazi
Australian Government Solicitor

INTERLOCUTORY ORDERS

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

SYG1155 of 2007

SZKMJ

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 signed on 9 March, 2007 and was handed down on 22 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 19 September, 2006. On 3 October, 2006 he applied for a protection visa. That application was refused on 14 October, 2006. The applicant applied to the Tribunal for review of that decision on 14 November, 2006. The applicant was invited to a hearing before the Tribunal and attended on 16 January 2007. The Tribunal was concerned about inconsistencies between the applicant’s oral evidence to it and what he had put in writing in support of his protection visa application. On 19 January 2007 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) inviting comment on those inconsistencies. The applicant responded on 31 January 2007.
The Tribunal in its decision found that the applicant was not a credible witness. The Tribunal referred to contradictory statements about where he lived in China and where he worked in China. The Tribunal noted that the applicant had originally claimed that his religion was Falun Gong but the Tribunal found that he knew very little about it. The Tribunal seemed to regard a claim made at the hearing that he was arrested in China in December 1999 as a recent invention. The Tribunal concluded that the applicant was not a truthful witness and found that the applicant was not a Falun Gong practitioner. It rejected all of his factual claims.
These proceedings began with a show cause application filed on 10 April 2007. That application asserted actual notification of the Tribunal decision on 22 March 2007. I find that the application was made within time.
The application was supported by an affidavit filed on the same day. That affidavit asserts jurisdictional errors by the Tribunal. The applicant continues to rely upon it and I treated it as a submission. The applicant now relies upon an amended application filed on 13 June 2007. That application, like the applicant’s original affidavit, asserts bias by the Tribunal and that the Tribunal misunderstood that Falun Gong is a religion. The amended application also asserts that the Tribunal failed to refer to what is described as proper independent information and asserts misunderstanding of Falun Gong. Thirdly, the amended application asserts that the Tribunal failed to carry out its statutory duty. This may be a reference to s.91R of the Migration Act referred to in the applicant’s affidavit.
I also have before me a book of relevant documents filed on 14 May 2007.
I invited oral submissions from the applicant. He was concerned that he had referred to the Tribunal the existence of an arrest warrant but explained that he had left it in China for safety reasons. He told me that he is still seeking a copy of the arrest warrant. He was concerned that the Tribunal did not believe his evidence concerning his practice of Falun Gong. He says he now has a witness who can verify his claims. That information of course was not available to the Tribunal. The applicant insists that he told the truth to the Tribunal and I understand his position to be that, to the extent that his oral evidence conflicted with his written statements, the oral evidence should have been preferred.
It is clear that the applicant was disbelieved by the Tribunal but there is nothing to support the allegation of bias. The applicant asserts that he did not have an opportunity to explain himself properly but that is not supported by the book of relevant documents. The applicant was invited to and attended a hearing. He was also given the opportunity to respond to a written invitation to comment on apparent inconsistencies between his written claims and his oral evidence. The Tribunal decision refers to s.91R of the Migration Act and the section (to the extent that it had any relevant application) appears to have been properly applied. In my view the Tribunal met its statutory obligations.
There was no misunderstanding by the Tribunal of what Falun Gong and Falun Dafa involved. Rather, the decision turned at least in part on the inability of the applicant to demonstrate any detailed understanding of Falun Gong or Falun Dafa. The adverse credibility findings made by the Tribunal were available to it on the material before it. Neither was there any obligation on the Tribunal to investigate the applicant’s claims beyond what he had presented. There is no substance to the grounds of review in the amended application.
I find that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. Neither is any arguable jurisdictional error apparent to me on my own reading of the material. The applicant expressed concern that he had not received advice under the Minister’s panel advice scheme. The court correspondence file discloses that the applicant asked to participate in that scheme. On 9 May 2007 the registry wrote to the applicant to advise him that his panel adviser was Mr Mark Campbell and provided his address and telephone number. The applicant told me that he did not understand the letter and in any event he was told by friends to do nothing until the panel adviser contacted him.
I do not know whether any advice has in fact been given to the applicant. If it has not, it is not clear where the fault lies. It is apparent, however, that the applicant has made no effort to pursue the matter himself with Mr Campbell. If there was a failure to provide advice to the applicant I am not satisfied that an adjournment of these proceedings is required.
I will 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”).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant indicated he may need to discuss payment of costs with the Minister’s representatives and he was concerned to clarify his rights of appeal. He did not otherwise make submissions 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 to the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 22 June 2007