SZKUI v Minister for Immigration - [2007] FMCA 1387

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1387

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Minister required to show cause why relief should not be granted – applicant failing to attend Tribunal hearing – whether the Tribunal’s discretion under s.426A enlivened or miscarried considered – whether the Tribunal entitled to make an adverse credibility finding based on the failure of the applicant to appear considered – observations on whether the show cause application is competent.

Acts Interpretation Act 1901 (Cth), s.29
Evidence Act 1995 (Cth), ss.160, 163
Migration Act 1958 (Cth), ss.425A, 426A, 430
Federal Magistrates Court Rules 2001 (Cth)

Minister for Immigration v SZKKC [2007] FCAFC 105
WACB v Minister for Immigration (2004) 210 ALR 190

Applicant:

SZKUI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1910 of 2007

Judgment of:

Driver FM

Hearing date:

15 August 2007

Delivered at:

Sydney

Delivered on:

15 August 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Hooper
DLA Phillips Fox

INTERLOCUTORY ORDERS:

Pursuant to r.44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) the first respondent is ordered to show cause why relief should not be granted to the applicant in relation to the issues identified in this judgment.
Any amended application or further affidavit evidence that the applicant wishes to rely on must be filed no later than 28 September 2007.
Any supplementary court book or affidavit evidence that the first respondent wishes to rely on must be filed no later than 31 October 2007.
Any affidavit evidence in reply that the applicant wishes to rely on must be filed no later than 30 November 2007.
The applicant is to file and serve an outline of legal submissions and list of authorities not less than 14 days before the final hearing date.
The first respondent is to file and serve an outline of legal submissions and list of authorities not less than seven days before the final hearing date, as well as e-mailing a copy to my associate.
The matter is listed for a final hearing at 2.15pm on 21 December 2007 before Federal Magistrate Driver in Court 6B at John Maddison Tower, 88 Goulburn Street, Sydney, with an estimated hearing length of

2 hours.
Costs of today’s interlocutory hearing are costs in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1910 of 2007

SZKUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application seeking a review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 3 November 2006 and was apparently handed down on 28 November 2006. 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 1387
Decision Date: 15 August 2007

CaseChat Overview and Summary

The case of SZKUI v Minister for Immigration and Citizenship involved a Chinese national who applied for a protection visa based on her practice of Falun Gong. The applicant arrived in Australia in May 2006 and applied for a protection visa on 1 June 2006. The Minister's delegate refused the application on 31 August 2006, and the applicant sought review of that decision by the Refugee Review Tribunal (Tribunal). The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 November 2006, but the applicant failed to attend the hearing. The Tribunal purported to exercise its discretion under s.426A of the Migration Act 1958 (Cth) (Migration Act) to proceed in the absence of the applicant and affirmed the Minister's decision not to grant the applicant a protection visa.

The legal issues in this case were whether the Tribunal's discretion under s.426A was correctly exercised and whether the Tribunal was entitled to make an adverse credibility finding based on the applicant's failure to appear. The applicant argued that the Tribunal should have contacted her by phone before making the adverse credibility finding and exercising its discretion. The Minister argued that the application was not competent due to the absence of an asserted date of notification of the Tribunal's decision.

The court found that the applicant had not presented any evidence of non-receipt of the Tribunal's letter of notification, and therefore, the application was competent. The court also found that the Tribunal had the means to contact the applicant by phone but did not do so, and there was no evidence that the Tribunal checked whether the hearing invitation was dispatched within three working days of the date it bore. The court concluded that the Tribunal's discretion under s.426A was not correctly exercised and that the Tribunal was not entitled to make an adverse credibility finding based on the applicant's failure to appear. The court ordered the Minister to show cause why relief should not be granted to the applicant in respect of the issues identified in the decision. The applicant and the Minister were given further opportunities to amend their applications and file additional evidence.

In conclusion, the court found that the Tribunal's decision was flawed, and the Minister was ordered to show cause why relief should not be granted to the applicant. The applicant and the Minister were given further opportunities to amend their applications and file additional evidence. The case highlights the importance of the Tribunal's duty to contact the applicant before making an adverse credibility finding and exercising its discretion under s.426A.

Orders