SZLAV v Minister for Immigration

[2007] FMCA 1463

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLAV v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1463

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: SZLAV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2131 of 2007

Judgment of: Driver FM

Hearing date: 23 August 2007

Delivered at: Sydney

Delivered on: 23 August 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Mansour
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. 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

SYG2131 of 2007

SZLAV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal decision was signed on 8 June 2007 and was handed down on 19 June 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from China and had made claims of persecution based upon his religion.  He arrived in Australia on 6 June 2004 and applied for a protection visa on 2 February 2007.  The Minister's delegate refused that application on 13 March 2007.  The applicant applied to the Tribunal to review that decision on 13 April 2007.

3. The Tribunal was unwilling to make a favourable decision on the papers and invited the applicant to a hearing on 7 June 2007.  The applicant attended.

4. The record of the Tribunal decision discloses that the Tribunal discussed with the applicant issues concerning his religious activities in Australia, or the lack of them, the detail of his claimed harm in China and his departure from China, country information concerning the treatment of Christians in China, and why it had taken the applicant more than two years since arriving in Australia to seek a protection visa.  The Tribunal was dissatisfied with the applicant's evidence.

5. The Tribunal also had regard to country information that religious practice was generally tolerated in China, in particular in Fujian Province.  The Tribunal had regard to country information that religious leaders in charismatic groups were most at risk.  The Tribunal also noted that the applicant had had little involvement with any church in Australia, and placed weight on his delay of over two years seeking a protection visa.

6. These proceedings began with a show cause application filed on 10 July 2007. That application asserts notification of the Tribunal decision on 19 June 2007. I find that the application was filed within time. The application asserts significant misstatement by the Tribunal of the country information it relied upon, a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”), and a failure to consider the applicant's claims properly and fairly.

7. The application is supported by a short affidavit filed on the same day.  I also have before me as evidence the court book filed in two volumes on 10 August 2007 and 21 August 2007.  I heard oral submissions from the applicant.  I am satisfied that there is no substance to any of his asserted grounds of jurisdictional error.

8. It appears from what the applicant told me from the bar table that the application was prepared by someone called Harry who works for the migration agent firm of Priscilla International.  It appears that Harry filed the application on 10 July 2007 but failed to inform the applicant of the first court date on 31 July 2007.  That explains the applicant's failure to attend on that day.

9. Country information relied upon by the Tribunal is reproduced in the court book. It says what the Tribunal says it says. There is no obligation on the Tribunal to disclose that country information, pursuant to s.424A of the Migration Act because of s.424A(3)(a).

10. The Tribunal considered the applicant's claims in accordance with the Convention and the Migration Act. The Tribunal decision records, on page 90 of the court book, that the country information of concern to the applicant was discussed with him at the hearing. The applicant in his oral submissions made the extraordinary claim that the Tribunal's description of what happened at the hearing is a lie. He has presented not one shred of evidence to back up that assertion. I do not believe him.

11. I find that the applicant has failed to disclose an arguable case of jurisdictional error. Accordingly, I dismiss the application pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth)

12. The application having been dismissed, costs should follow the event.  The Minister seeks scale costs of $2,500.  The applicant stated his intention to appeal.  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 twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate: 

Date:  24 August 2007