SZKNN v Minister for Immigration
[2007] FMCA 932
•18 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKNN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 932 |
| 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), s.424A |
| Applicant: | SZKNN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1264 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 G Broderick Clayton Utz |
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, fixed in the sum of $2,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1264 of 2007
| SZKNN |
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 Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The Tribunal decision was signed on 1 March 2007 and was handed down on 22 March 2007.
The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. He arrived in Australia on 1 August 2006. On 25 August 2006 he applied for a protection visa. That application was refused by the delegate on 2 September 2006. The applicant sought review of that decision by the Tribunal on 3 October 2006.
The applicant was invited to attend a hearing before the Tribunal and did so on 22 January 2007. After the hearing, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) and invited his comments on an apparent inconsistency between his oral evidence at the hearing and his protection visa claims. The applicant did not respond to that invitation.
The Tribunal was not satisfied that the applicant is a member of Falun Gong. The Tribunal stated that the applicant was unable to tell it of the philosophy underlying the practice of Falun Gong. The Tribunal noted the applicant’s evidence that his practice of Falun Gong is to sit silently for two hours at night and also to close his eyes and murmur. The applicant was unable to answer questions from the Tribunal about details of Falun Gong practice or its underlying moral code. The Tribunal rejected the applicant’s claims based upon his asserted Falun Gong practice. The Tribunal also considered the applicant’s claim to have been discriminated against because of his family’s class background. The Tribunal found that the applicant would not suffer serious harm because of that background.
The applicant had also claimed that he would suffer harm because of support he allegedly gave the student movement in China in 1989. The Tribunal found, based on the applicant’s own evidence, that there was no real chance that he would suffer harm should he return to China because of any association he had with the student movement in 1989.
These proceedings began with a show cause application filed on 19 April 2007. That application asserts actual notification of the Tribunal decision on 2 April 2007. On that basis I find that the application was filed within time. The applicant now relies upon an amended application filed earlier today in the court registry.
The applicant also continues to rely upon an affidavit filed with his original application on 19 April 2007. I received that affidavit as a submission. I received as evidence the court book filed on 15 May 2007. The applicant claims bias against the Tribunal but there is no evidence whatsoever to support that allegation. The applicant also asserts that there was no reasonable ground for the Tribunal’s lack of satisfaction that he was a refugee. The Tribunal’s findings were, however, open to it on the material before it. The amended application asserts that the Tribunal failed to consider the applicant’s claims and failed to assess the chance of his persecution on his return to China. That assertion is false on the plain text of the Tribunal decision.
The amended application also asserts that the Tribunal referred to irrelevant information in considering his application. There is no support for that contention in the court book. The Tribunal decision turns on the information the applicant himself provided to the Tribunal or to the Minister’s Department. All of that information was relevant. The amended application also asserts a failure to comply with s.424A of the Migration Act. The applicant refers to an invitation to comment appearing on page 79 of the court book. That letter, in my view, met the requirements of s.424A and there is no other information that was determinative of the outcome before the Tribunal that required disclosure under that section.
In his brief oral submissions, the applicant repeated his unparticularised grounds of review and asserted that he could not return to China.
I find that the applicant has failed to demonstrate an arguable case of jurisdictional error. Neither is any arguable jurisdictional error apparent to me on the face of the material. 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”).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,250. That is less than scale costs prescribed under the Federal Magistrates Court Rules. The applicant did not wish to be heard on costs. I am satisfied that costs of not less than $2,250 have been reasonably and properly incurred on behalf of the Minister on a party and party basis. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 June 2007
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