SZLVE v Minister for Immigration
[2008] FMCA 411
•1 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 411 |
| MIGRATION – Whether proceeding should be dismissed pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 on the basis that no arguable case is disclosed. |
| Federal Magistrates Court Rules 2001, r.44.12 Migration Act 1958 (Cth), s.424A |
| SZBYR v Minister for Immigration (2007) 235 ALR 608 |
| Applicant: | SZLVE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3972 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 April 2008 |
| Date of last submission: | 1 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2008 |
REPRESENTATION
| Applicant in person with Mandarin interpreter |
| Solicitors for the Respondent: | Ms B. Anniwell, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3972 of 2007
| SZLVE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the First Respondent that the proceeding before this Court be dismissed pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 on the basis that the application seeking judicial review does not raise an arguable case for the relief claimed.
The Applicant filed an application on 28 December 2007 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 December 2007 on the following grounds:
“1. The Tribunal had bias against me and failed to consider the claims of my application. The Tribunal did not believe my claims.
2. The Tribunal had not notified me in writing the reason or part of the reasons for affirming the decision. My application was not considered in accordance with s.424A of the Migration Act 1958.
3. The independent information the Tribunal referred was irrelevant, and out of date.”
The Application was supported by an affidavit annexing a copy of the Tribunal’s decision.
On 6 March 2008, the Applicant attended a directions hearing before this Court at which the Court gave the Applicant leave to file and serve and amended application and any further evidence, including any transcript of the Tribunal hearing, by 18 March 2008. The matter was set down for today’s show cause hearing on that occasion.
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant was given leave to file in Court and rely upon an amended application disclosing the following grounds:
“1. The Tribunal failed to consider the claims of my application because of the Tribunal’s bias against me.
2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The above mentionted had to be provided in writing (SAAP V MINISTER FOR IMMIGRATION AND MULTICULATURAL(sic) AND INDUSTRIAL(sic) AND ETHNIC AFFAIRS (2005) HCA 24(18 MAY 2001).”
The Applicant confirmed that it was only the two grounds in the amended application upon which he relied in support of his application for judicial review of the Tribunal’s decision.
In relation to ground 1, the Court explained to the Applicant that the bare allegation of bias was unsupported by particulars or evidence. The Applicant was invited to identify those matters about the Tribunal’s conduct or decision that he considered demonstrated the Tribunal’s bias against him, other than his disagreement with the Tribunal’s findings and conclusions. The Applicant had nothing further to say. A fair reading of the Tribunal’s decision record does not suggest that the Tribunal approached its task other than with a mind open to persuasion.
Accordingly ground 1 raises no arguable case for the relief claimed.
In relation to ground 2 of the amended application, the Court explained to the Applicant that there were no particulars to identify what the information was that the Applicant contends enlivens the obligations of s.424A of the Migration Act 1958 (Cth). The Court explained that if the Applicant was complaining only that the Tribunal had failed to provide its reasons to him for comment, then there is no such obligation on the Tribunal to do so. The Applicant was invited by the Court to identify any information he wished to contend should have been provided to him by the Tribunal. Again the Applicant had nothing to say.
A fair reading of the Tribunal’s decision makes clear that the reason why the Tribunal affirmed the decision under review was because it was not satisfied of the Applicant’s claims of a fear of persecution from the authorities in the People’s Republic of China by reason of being a Falun Gong practitioner, based on the Applicant’s own evidence.
The Tribunal decision record identifies the inconsistencies and contradictions in the Applicant’s evidence that caused the Tribunal to reject the Applicant’s claims of being a Falun Gong practitioner. The inconsistencies identified by the Tribunal were between claims made by the Applicant in his protection visa application and his oral evidence to the Tribunal. Such inconsistencies are not “information” that enliven the obligations of s.424A of the Migration Act 1958 (Cth) (SZBYR v Minister for Immigration (2007) 235 ALR 608 at [18]).
Accordingly ground 2 raises no arguable case for the relief claimed.
The Applicant was invited to say whatever he wished in support of his application generally, however, he declined to make any further submission in support of the relief claimed.
Although the Applicant confirmed that it was only the grounds of the amended application on which he relied, the only difference between the amended application and the initiating application was the deletion of ground 3 of the initiating application from the amended application. For the sake of completeness, ground 3 of the initiating application could not disclose an arguable case. A fair reading of the Tribunal’s decision makes clear that there was no reliance by the Tribunal on the independent country information in affirming the decision under review.
Accordingly, the proceeding before this Court, commenced by way of application filed on 28 December 2007, is dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 with costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 1 April 2008
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