SZMIJ v Minister for Immigration
[2008] FMCA 1138
•11 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1138 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant: | SZMIJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1373 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 11 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Baggett DLA Phillips Fox |
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 in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1373 of 2008
| SZMIJ |
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 1 May 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China. She arrived in Australia on 24 August 2007 and applied for a protection visa on 28 September 2007. A delegate of the Minister refused that application on 21 December 2007. On 29 January 2008 the applicant sought review of that decision by the Tribunal.
The applicant made claims of persecution based upon assertions of harassment by Chinese Public Security Bureau (“PSB”) officials. She said she was accused of holding secret gatherings of the Roman Catholic underground church. She claimed to have been detained and mistreated by the PSB.
The Tribunal was concerned about inconsistencies in the applicant's evidence and inconsistencies between her protection visa claims and statements made in an earlier application for a visitor visa. The Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) on 27 February 2008, inviting comment on various issues which the Tribunal saw as material to the outcome of the review application. The applicant responded in the form of a statutory declaration provided by her migration agent, Priscilla Yu, to the Tribunal by letter dated 12 March 2008. The Tribunal identified[1] and considered[2] the applicant's responses to the Tribunal's invitation. The Tribunal gave little weight to the applicant's responses, apparently on the basis that they added to, rather than reduced, its concerns about inconsistencies in the applicant's evidence.
[1] court book, pages 112-113
[2] court book, page 114
These proceedings began with a show cause application filed on 28 May 2008. The applicant continues to rely on that application. She was unsure whether to rely on a supporting affidavit filed on the same day. I did not receive that affidavit as it did nothing other than identify the applicant and provide a copy of the Tribunal decision.
I have before me as evidence, the court book filed on 25 June 2008. The applicant could not recall receiving the court book. However, the Minister tendered a letter[3] which shows that the court book was sent to the applicant at her address for service by letter dated 25 June 2008.
[3] which became exhibit R1
There are seven grounds of review identified in the application; an eighth paragraph provides a summary. The application asserts that the Tribunal failed to consider various aspects of the applicant's claims and/or evidence impartially and correctly. The application asserts that the Tribunal made a completely incorrect finding on her application.
These grounds are substantially an attack on the merits of the Tribunal decision. The merits of the Tribunal decision are beyond the scope of this proceeding. The references to the Tribunal failing to act impartially I took to be an allegation of bias, however the applicant was unable to tell me of anything that made her think that the Tribunal was biased. She said that she did not know how to express herself or what to say. She produced from her handbag a handwritten document in Chinese which the interpreter read to me. That document essentially re-stated the grounds in the application. Those grounds are in turn substantially based on the statutory declaration made by the applicant on 12 March 2008[4]. I am satisfied from the Tribunal decision that the Tribunal considered those statements by the applicant. There is nothing to indicate bias on the part of the Tribunal.
[4] See court book, pages 73-75
The applicant was invited to attend a hearing before the Tribunal on 1 April 2008. She did attend and provided oral evidence. The Tribunal was unimpressed with that evidence and found the applicant to be untruthful. The Tribunal rejected the essential assertions supporting the applicant's protection visa claims. There is nothing in the material before me to indicate any arguable case of jurisdictional error.
Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks an order for costs in the amount of $2,500. That is in accordance with the Court scale. The applicant did not wish to be heard on costs. 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 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 August 2008
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