SZKPP v Minister for Immigration - [2007] FMCA 1371

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKPP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1371

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001 (Cth)

Applicant:

SZKPP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1469 of 2007

Judgment of:

Driver FM

Hearing date:

13 August 2007

Delivered at:

Sydney

Delivered on:

13 August 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms B Anniwell
Australian Government Solicitor

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to r.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, pursuant to r.44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth) in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1469 of 2007

SZKPP

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 19 March 2007 and was handed down on 10 April 2007. The tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant arrived in Australia on 29 September 2006. On 6 October 2006 he applied to the Minister's department for a protection visa. On 13 November 2006 a delegate of the Minister refused that application. The applicant sought review by the Tribunal of that decision on 14 December 2006.
The applicant's claims were set out in a statement attached to his protection visa application. It is apparent that the Tribunal doubted the fundamental credibility of the applicant's claim. On 9 January 2007 the Tribunal sent the applicant an invitation to comment pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The letter is reproduced on pages 44 and 45 of the Court Book. The letter referred to country information concerning the difficulty of persons wanted by the PRC authorities to leave the country legally and the fact the applicant had left China legally. It also noted that country information indicated that genuine Falun Gong practitioners seeking asylum would obtain proof of their Falun Gong adherence in their country of refuge. The letter notified the applicant that the relevance of the information was that it may be difficult for the tribunal to accept that he was a Falun Gong practitioner and that his credibility was in issue.
The applicant was also invited to attend a hearing before the Tribunal and did attend. The Tribunal hearing was conducted on 13 March 2007. The Tribunal was unimpressed with the applicant's evidence. The Tribunal concluded that the applicant knew very little about Falun Gong and was not, and had never been, a Falun Gong practitioner. The Tribunal also noted that the applicant had left China legally on valid travel documents which was inconsistent with his claims of being a Falun Gong practitioner in China, of interest to the Chinese authorities.
These proceedings began with a show cause application filed on 9 May 2007. The applicant asserts actual notification of the Tribunal decision on 10 April 2007. I find that the application was filed within time.
The applicant continues to rely on that application but has augmented it with an amended application filed on 4 July 2007. He also filed an affidavit with his original application filed on 9 May 2007. I declined to receive that affidavit. Apart from annexing a copy of the Tribunal decision, which is reproduced in the book of relevant documents[1], the affidavit asserts that the applicant has no intention to go back to Indonesia. That is a peculiar statement given that the applicant's country of origin is China. It is irrelevant to this proceeding.
[1] which I received as evidence
The applicant denied receipt of the book of relevant documents. The Minister tendered a copy of a letter dated 8 June 2007 sent to the applicant at his postal address for service. That letter states that a copy of the book or relevant documents was enclosed and I accept that the book was sent.
There was confusion about the applicant's postal address. In his original application he had nominated his postal address as 5003/57‑59 Queen Street, Auburn. That was the address to which the book of relevant documents was sent. However, at the first court date hearing on 30 May 2007 the applicant nominated his postal address 8/226 Elizabeth Street, Surry Hills. That was also given as his home address. In his amended application filed on 4 July 2007 the applicant reverted to his original postal address. Given the confusion, which the application was himself responsible for, it is plausible that he did not receive the book of relevant documents prior to Court today. However, I was able to satisfy myself that no injustice resulted. The critical document in the book of relevant documents is the tribunal decision which the applicant already had. None of the other documents in the book of relevant documents would have come as a surprise to him.
The original application contains two grounds of review. The first is an attack on the merits of the Tribunal decision which is beyond the scope of this proceeding. The second is an assertion that there was no evidence or other materials to justify the making of the decision. The applicant expanded upon that assertion in his oral submissions.
In particular, he took me to page 71 of the book of relevant documents where the tribunal dealt with the issue of the applicant's departure from China. He pointed out that it is possible to leave China legally notwithstanding that one is of interest to the Chinese authorities. He referred to the cases of other successful protection visa applications where that has found to be so. The applicant may be right but the Tribunal relied on independent country information. Its conclusion was open to it on the material before it.
The applicant also took issue with the Tribunal's finding that he is not, and has never been, a Falun Gong practitioner. He told me that he did not have time in Australia to practise Falun Gong because of the need to support himself financially. In China he would have more time to practise because he would be eligible for unemployment benefits. However, that argument goes to the merits of the Tribunal decision which I cannot review.
The amended application is wholly an attack upon the merits of the Tribunal decision. It is true that the applicant failed before the Tribunal because his credibility was fundamentally rejected. That was a different basis of reasoning than that taken by the delegate in the decision reproduced on pages 28 to 37 of the court book. However the Tribunal's fundamental credibility concern was notified to the applicant by its letter dated 9 January 2007. The Tribunal also took the prudent course of inviting the applicant to a hearing notwithstanding that he failed to respond to that letter. The Tribunal met or exceeded its statutory obligations. The applicant was on notice about the issue to be addressed.
The applicant has failed to demonstrate any arguable case of jurisdictional error by the tribunal. Neither is any arguable case of jurisdictional error apparent to me from my own reading of the material.
In the circumstances, I will order that the application be dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The minister seeks scale costs of $2,500. The applicant claims an inability to pay costs, but that is not a reason for the Court to refrain from making a costs order. I see no reason to depart from the Court scale in this case. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to r.44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth) in the sum of $2,500.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 16 August 2007