SZLVH v Minister for Immigration
[2008] FMCA 285
•10 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 285 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a debtor – Tribunal found no Convention nexus with feared harm – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant: | SZLVH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3979 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 10 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Crittenden Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed pursuant to rule 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 $1,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3979 of 2007
| SZLVH |
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 handed down on 11 December 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 claimed protection based upon an asserted practice of Falun Gong. However, before the Tribunal he abandoned that claim entirely. He told the Tribunal that the protection visa claims based upon the asserted Falun Gong were fabricated. The applicant told the Tribunal that he had borrowed 100,000 RMB from creditors in China but was unable to repay the debt following the collapse of his business. He told the Tribunal that he had fled China because he feared for his life.
The Tribunal found that the applicant appeared genuine and credible in his testimony. The Tribunal accepted that the applicant owed the amount of 100,000 RMB, but found no Convention nexus with the harm the applicant fears.
This present proceeding began with a show cause application filed on 28 December 2007. The applicant now relies upon an amended application filed on 5 March 2008. I also received as a submission the applicant's affidavit accompanying his original application. I have before me as evidence the court book filed on 25 January 2008. The applicant contends that the Tribunal was biased and based its decision on the decision maker's assumption. There is no substance whatsoever to that assertion. The Tribunal's decision is based upon the claim made at the Tribunal hearing for the first time by the applicant. The claim was accepted but the Tribunal found, correctly in my view, no Convention nexus with the harm feared. The applicant was not contending that he feared harm as a member of any particular social group. His circumstances were personal and peculiar to him.
Before me today the applicant asserted that he also claimed to worship the moon. There is no record of that in the Tribunal decision or indeed in any document in the court book. The applicant asserted that there may have been some difficulty in interpretation at the hearing but, in the absence of a transcript, I am unable to verify that assertion. On 4 February 2008 I gave the applicant, as well as the Minister, the opportunity to file and serve a transcript of the Tribunal hearing up to seven days before today's hearing. Neither party took advantage of that opportunity.
I reject the allegation of bias and I also find on the basis of the material before me that there is no substance to the assertion of inadequate translation at the Tribunal hearing.
The applicant also contends that the Tribunal breached s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal decision is based entirely upon what the applicant told the Tribunal at the hearing conducted by the Tribunal. No obligation of disclosure pursuant to s.424A of the Migration Act arose.
In his amended application the applicant appears to have abandoned the third ground of review contained in his original show cause application. That was an allegation that the Tribunal decision was not based on evidence. The Tribunal decision was plainly based on evidence, being evidence provided by the applicant to the Tribunal at the hearing.
I see no arguable case of jurisdictional error in the Tribunal decision. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $1,250. Scale costs in this instance would be $2,500. The applicant claims impecuniosity but, as has been repeatedly observed, that is not a reason for the Court to refrain from making a costs order. Costs of $1,250 have been reasonably and properly incurred on behalf of the Minister in dealing with this application. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in that amount.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 March 2008
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