SZKOI v Minister for Immigration
[2007] FMCA 1075
•9 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1075 |
| 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: | SZKOI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1351 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 9 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Mansour 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 $2,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1351 of 2007
| SZKOI |
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 26 March 2007 and was handed down on 17 April 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 has made claims of persecution based upon his practice of Falun Gong. He arrived in Australia on 7 December 2006 and applied to the Minister's Department for a protection visa on 28 December 2006. The Minister's delegate refused that application on 31 January 2007. On 19 February 2007 the applicant applied to the Tribunal for review of the delegate's decision.
The Tribunal was unwilling to make a favourable decision on the papers alone and invited the applicant to a hearing. He did not respond, but nevertheless appeared before the Tribunal on 22 March 2007. Previously, the Tribunal had written to him on 23 February 2007 inviting comment on potentially adverse information pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).
I have before me as evidence the court book filed on 6 June 2007. That is the only evidence I have before me. The court book discloses, on pages 79 to 84, an extensive discussion between the Tribunal and the applicant at the hearing about his claims. It is apparent from that discussion that the Tribunal, at the hearing, had doubts about the applicant's claims. It is apparent from the findings and reasons of the Tribunal that the applicant's claims were rejected.
The Tribunal was not satisfied that the applicant was involved with Falun Gong as he had claimed. The Tribunal found that the applicant was not a credible witness and found him to be evasive and non-responsive when giving evidence. The Tribunal found that the applicant displayed minimal knowledge of Falun Gong and rejected his attempt to explain away that lack of knowledge. The Tribunal also found that the applicant had had little contact with Falun Gong practitioners in Australia. Having disposed of the core claim made by the applicant, the Tribunal went on to consider some incidental factual claims made by the applicant.
These proceedings began with a show cause application filed on 27 April 2007. The applicant claims actual notification of the Tribunal decision on 17 April 2007. I find that the application was filed in time. The application is supported by a short affidavit which the applicant relies upon and which I have before me. In that, the applicant states that he did not make “proper or suitable” his application to the Tribunal. The show cause application is defective in that it does not assert any jurisdictional error. It simply contains the bald statements that the applicant is a Falun Gong follower and that he faces a real chance of persecution in China.
The applicant failed to attend the first court date on the application on 29 May 2007. I made orders in his absence for the filing of additional material and listed the matter for a show cause hearing today. He did not take up the opportunity to file any amended application or any additional evidence. The applicant appeared at the hearing today and confirmed that he was aware of my orders. He told me that he is now living in Perth, although he has not filed any notice of change of address. He confirmed that his home address disclosed on his application remains correct. He told me that his address for receiving mail is the address of a friend who is in China and who he has been unable to contact. Nevertheless, the applicant has not changed, and apparently does not want to change, the address for the receipt of mail.
The applicant was unable to make any submissions on any legal issues. He told me that he was feeling sleepy and this was verified by his yawning on several occasions. He also told me that he had got wet in the rain before coming to Court and that he was feeling unwell. However, his asserted illness was only raised after I pressed him in relation to legal issues in the matter and he had been unable to respond. He displayed no visible signs of illness and no medical evidence has been presented. I satisfied myself that the applicant was in a fit state to participate in the hearing.
No jurisdictional error has been asserted by the applicant. On my reading of the available material, no arguable case of jurisdictional error is apparent. The applicant failed before the Tribunal because he was not believed. The findings made by the Tribunal were open to it on material before it. The Tribunal met its statutory obligations to put adverse material to the applicant in writing, to invite him to a hearing and to consider his claims.
I find that the applicant has failed to demonstrate an arguable case of jurisdictional error. Accordingly, I dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. Scale costs in this instance would be $2,500. The Minister seeks costs fixed in the amount of $2,300 and I have no difficulty in accepting that those costs have been reasonably and properly incurred. The applicant referred to his impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,300.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 July 2007
0
0
2