SZKQZ v Minister for Immigration
[2007] FMCA 1672
•4 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1672 |
| MIGRATION – Show cause hearing – whether the grounds in the application itself raise an arguable case – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 425A, 441A Migration Regulations 1994 (Cth), reg.4.35D Federal Magistrates Court Rules 2001, rr.44.12(1), 44.13(1) |
| Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZKQZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1592 of 2007 |
| Judgment of: | Turner FM |
| Hearing dates: | 26 September & 4 October 2007 |
| Date of last submission: | 4 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms F. Minzlaff of Blake Dawson Waldron |
ORDERS
The application is dismissed pursuant to Rule 44.12(1)(a).
The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1592 of 2007
| SZKQZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 22 March 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 10 November 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application she claimed to fear persecution because of her practice of Falun Gong.
The application was refused by a delegate of the first respondent on 18 November 2006 and by the Tribunal on review on 22 March 2007.
The matter is now before this Court pursuant to an application for judicial review filed on 21 May 2007.
This hearing is to determine whether the application lodged by the applicant raises an arguable case. In considering whether the application raises an arguable case, by the provisions of r.44.13(1) of the Federal Magistrates Court Rules 2001, the applicant is confined to the relief sought and the grounds mentioned in the application. The Court will therefore determine the question of whether there is an arguable case on the basis of the three grounds stated in the applicant’s application.
The application
In his application, the applicant set out three grounds as follows:
(1)The decision involved an error of law in that: Procedures (sic) that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.
(2)The decision involved an important exercise of the power conferred by the Migration Act and Regulations. The member of Refugee Review Tribunal should not make decision that I am not a Falun Gong practitioner in China just because I had not provided the adequate documents.
(3)The Tribunal have no reasonable evidence to demonstrate that I do not have a well founded fear of persecution for a Convention reason should I return to China.
Findings of the Court in relation to the grounds in the application
Ground one asserts that the Tribunal did not follow procedures required by the Migration Regulations 1994 (Cth) (“the Regulations”). The result of s.422B is that Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule that was applicable to this case. There are no details of any alleged breach.
In applying rule 44.13(1), the Court must look at the application document itself to identify the grounds. There are no particulars provided of the grounds. The Court is satisfied from the submissions for the first respondent that s.424A, 425, 425A, 441A, and reg.4.35D were complied with. The Court is not satisfied that ground one raises an arguable case.
Ground two asserts that the Tribunal should not have rejected the claim because the applicant had not provided adequate documents. The Court agrees with the following statement by the Tribunal in another matter:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
Also,
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
As stated in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70, “it is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”:
The Court agrees with the following submissions in another matter:
The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.
The Court is not satisfied that ground two raises an arguable case.
Ground three seeks to review a finding of fact that the applicant does not have a well-founded fear of persecution for a Convention reason. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Also, in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
The applicant is not able to have this finding of fact reviewed. The Court is not satisfied that ground three raises an arguable case.
The Court is not satisfied that the application has raised an arguable case and dismisses it pursuant to Rule 44.12(1)(a).
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 30 October 2007
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