SZKUX v Minister for Immigration
[2007] FMCA 1396
•15 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1396 |
| 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, 425A |
| Applicant: | SZKUX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1992 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 S Kantaria Clayton Utz |
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, fixed in the sum of $1,650.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1992 of 2007
| SZKUX |
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 30 April 2007 and was apparently handed down on 22 May 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of persecution based upon his practice of Falun Gong. He arrived in Australia on 23 November 2006 and applied for a protection visa on 4 January 2007. The Minister’s delegate refused that application and the applicant sought review by the Tribunal. The Tribunal was not persuaded to make a favourable decision on the applicant’s written claims alone. On 19 March 2007 he was invited to attend a hearing on 16 April 2007. The applicant attended that hearing and gave evidence. He was assisted by a Cantonese interpreter.
In its decision the Tribunal referred to that evidence and also to independent information concerning the practice of Falun Gong. The Tribunal considered that the applicant had a mere cursory familiarity with Falun Gong. It decided that none of his claims about his involvement with Falun Gong were true. In its decision the Tribunal referred to information it had regard to concerning the Falun Gong movement and the knowledge that might be expected of real practitioners. The Tribunal also noted that the applicant had not demonstrated any interest in practising Falun Gong since he arrived in Australia in November 2006.
These proceedings began with a show cause application filed on 27 June 2007. The applicant asserted actual notification of the Tribunal decision on 31 May 2007. I find that the application was filed within time.
The applicant now relies upon an amended application filed on 8 August 2007. He continues to rely on an affidavit which accompanied his original application. I receive that affidavit as a submission. I received as evidence the court book filed on 19 July 2007. The applicant denied receipt of that court book. I am satisfied from exhibit R1, being a letter dated 26 July 2007, that the court book was sent by post to the applicant at his postal address for service. The applicant told me that his address for service is a post office box owned by his friend, a Ms “Wong”. It is apparent from what the applicant said that his friend is some kind of migration agent who has been assisting him. He said that he understands little or nothing of what she says because she speaks Mandarin while he speaks Cantonese. He has not paid her any money but has provided small gifts. On the assumption that the agent is a Mandarin speaker, and on the basis of a comment made by the interpreter during the course of the hearing, it is likely that her name is spelt Huang.
I am satisfied that the court book was sent to the applicant. I do not know what became of it. The applicant told me during the course of today’s hearing that Ms Huang told him that some documents, which he was unable to identify, were apparently missing. That may have been intended to be a reference to the court book. I provided the applicant with the original of the court book from the court file.
I satisfied myself that there was no injustice if the applicant had not previously seen the court book because he should have previously seen all of the documents in it with the probable exception of the administrative record of the Tribunal hearing on pages 64 and 65 of the court book. Nothing turns on that document.
I also received as evidence the affidavit of Miriam Mafessanti made and filed on 26 July 2007. I am satisfied from that document and the court book that the hearing invitation appearing on page 55 of the court book was sent to the applicant in accordance with s.425A of the Migration Act 1958 (Cth) (“the Migration Act”).
The applicant asserts bias on the part of the Tribunal. There is nothing whatsoever to support that application. The allegation should not have been made. The applicant also asserts that the Tribunal failed to refer to what is described as proper independent information. That appears to be a reflection on the independent information the Tribunal did refer to. The Tribunal was entitled to have regard to that information.
The applicant also asserts a breach of s.424A of the Migration Act. However, the Tribunal decision plainly turned on information which either came from the applicant himself or was not personally about the applicant but was about a class of persons that may include the applicant. That information was not required to be disclosed pursuant to s.424A.
There is nothing to indicate any failure by the Tribunal to meet its statutory obligations or any other jurisdictional error. I find that the applicant has failed to demonstrate an arguable case of jurisdictional error.
I 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 an order for costs in the sum of $1,650. Scale costs in this instance would be $2,500. The applicant thought that costs should be less and said that he was unable to pay. I am satisfied that the costs sought by the Minister have been reasonably and properly incurred when assessed on a party and party basis.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $1,650.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 August 2007
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