SZKUK v Minister for Immigration - [2007] FMCA 1390

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1390

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

Migration Act 1958 (Cth), ss.424A, 425
Federal Magistrates Court Rules 2001 (Cth)

Applicant:

SZKUK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1938 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 E Warner-Knight
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 in the sum of $2,500, pursuant to r.44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1938 of 2007

SZKUK

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 3 May 2007 and was apparently handed down on 29 May 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 had made claims of religious persecution. He arrived in Australia on 12 November 2006. He applied for a protection visa on 28 November 2006. A delegate of the Minister refused that application on 23 February 2007. The applicant sought review by the Tribunal of the delegate’s decision on 23 March 2007.
The Tribunal had concerns about the applicant’s claims. The Tribunal wrote to the applicant on 11 April 2007 pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking comment on those concerns. The applicant responded on 27 April 2007.
On 4 April 2007 the applicant was invited to appear at a hearing on 3 May 2007. It is apparent from a handwritten note on that letter appearing on page 51 of the court book, which I have before me as evidence, that the letter was posted on the date that it bore.
The applicant responded on 26 April 2007 declining to attend a hearing: see page 56 of the court book. The Tribunal was left in the position that it could not be satisfied that the applicant qualified for a protection visa. In particular the Tribunal said[1],
In the absence of further explanation from the applicant, and given the paucity of the information before the Tribunal, the Tribunal does not accept that the applicant is a committed Christian or that he was involved in any religious activity in China, South Korea, or Australia or that he belonged to an unregistered church. The Tribunal does not accept that the applicant was detained in 2001 and mistreated during detention. The Tribunal does not accept that the applicant lost his job because of his religious involvement. The Tribunal does not accept that the applicant’s brother was required to report on the applicant’s activities or that he was monitored by the authorities.
[1] court book, page 69
It can be seen from that passage that the Tribunal was unwilling to accept the factual basis for the applicant’s claims on the very limited material before it.
These proceedings began with a show cause application filed on 22 June 2007. The applicant asserts actual notification of the decision on 30 May 2007. On that basis I find that the application was filed within time.
The application contains five grounds of review, all of which attack the merits of the Tribunal decision. It is supported by an affidavit also filed on 22 June 2007 in which the applicant repeats his protection visa claims. When this matter first came before me on 13 July 2007 I gave the applicant the opportunity to file and serve an amended application and additional affidavit evidence. He has not taken up that opportunity.
The applicant did not make any meaningful oral submissions in support of his application. He told me that he had not received the court book which had been sent to him by the Minister’s solicitors under cover of a letter dated 18 July 2007. He admitted receipt of correspondence from the Minister’s solicitors, including that letter, but said that the court book was not included with it.
The applicant is one of a class of applicants who choose to use a private mail box facility. This particular facility is located at 337 Beamish Street, Campsie. Like other members of the class he relies upon a person described as a friend to receive and pass on correspondence. It is not uncommon for members of this class of applicant to assert at a hearing that documents of significance have not been received. It is understandable that applicants who speak no English might want to have the assistance of friends to ensure that they understand what is sent to them. However, the very common approach by applicants to use the services of friends at this address and others, in particular in Surry Hills, is suspicious. It is suggestive of a commercial enterprise. No involvement by any registered migration agent has been disclosed in this application, as in many others. If this applicant, like other members of the class, is to be believed about the non receipt of documents of significance, it suggests an unreliability in the arrangement. It is also possible that applicants are simply told to say they did not receive documents of significance in the hope of obtaining an adjournment.
In any event, I provided the applicant, for the purposes of today’s hearing, with a copy of the court book. All of the documents in the court book were documents that the applicant would have seen previously and so would not have come as a surprise. I satisfied myself that if the applicant had indeed not received the court book previously, no injustice resulted.
The show cause application fails to disclose any arguable case of jurisdictional error. Neither is any arguable case of jurisdictional error apparent to me from reading the material. The Tribunal met its obligations under ss.425 and 424A of the Migration Act. Once the applicant had declined the hearing opportunity offered to him, the outcome was almost inevitable. The findings made by the Tribunal were open to it on the material before it. 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 that he is impecunious but as has repeatedly been stated, 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 matter. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500, pursuant to rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 17 August 2007