SZMKW v Minister for Immigration
[2008] FMCA 1232
•1 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1232 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424AA |
| Applicant: | SZMKW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1587 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 1 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms Z McDonald 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, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1587 of 2008
| SZMKW |
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 22 May 2008. 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 made claims of persecution based upon the practice of Falun Gong. She arrived in Australia on 11 November 2007 and applied to the Minister's Department for a protection visa on 5 December 2007. The delegate refused that application on 16 January 2008. On 31 January 2008 the applicant applied to the Tribunal for review of the delegate's decision. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing. The applicant attended that hearing on 8 April 2008. It is apparent from the Tribunal's record of what occurred on that day that the Tribunal was concerned with inconsistencies between the applicant's written and oral claims. The Tribunal was also concerned that the applicant claimed to have left China legally on her own passport. Those issues were put to the applicant orally by the presiding member at the hearing. The applicant indicated that she wished to respond in writing and did so on 16 April 2008. The Tribunal refers to that response in its decision. The Tribunal also refers to independent country information relating to passport and exit procedures in China.
The Tribunal found that the applicant's lack of knowledge of the principles and meaning of Falun Gong and her inability to discuss at any level her interest in the practice at meetings was inconsistent with the claim to have practised Falun Gong on and off since 1997 and since coming to Australia. In the light of what the Tribunal saw as deficiencies in the applicant's evidence, the Tribunal did not accept that the applicant was a Falun Gong practitioner in China or that she had been practising Falun Gong in Australia. Because the Tribunal rejected the applicant's factual claims the Tribunal concluded that the applicant would not be at risk of harm in China as a Falun Gong practitioner or because of any association with Falun Gong.
These proceedings began with a show cause application filed on 20 June 2008. The applicant now relies upon an amended application filed on 13 August 2008. That application alleges that the Tribunal was biased, that it failed to provide details of evidence and materials to support its decision, that the Tribunal referred to out of date independent information and that the Tribunal failed to consider the applicant's claims because of a limited knowledge of the background of China. The applicant also relies upon a short affidavit filed with her original application which I accepted as a submission. The affidavit re states in part grounds 1 and 2 of the amended application.
I have before me as evidence the court book filed on 11 July 2008.
In her oral submissions the applicant simply stated that she hoped for a favourable decision because she wishes to stay in Australia longer.
There is no substance to any of the grounds in the amended application or as stated in the affidavit. There is no evidence whatsoever to support the allegation of bias. On 14 July 2008 I made orders, among other things, giving the applicant the opportunity to file additional affidavit evidence or particulars of her claims of jurisdictional error. She has not taken advantage of those opportunities.
Contrary to the assertion in the amended application, the Tribunal did embark upon a course of oral disclosure at the hearing conducted by it purportedly pursuant to s.424AA of the Migration Act 1958 (Cth) (see court book, page 87, in particular at paragraph 42). It is arguable that the Tribunal went beyond its statutory obligations because the disclosure related to what the Tribunal saw as inconsistencies between the applicant's written and oral claims. Nevertheless, the Tribunal's approach was prudent and lawful.
The other grounds in the amended application go to the merits of the Tribunal decision which are beyond the scope of this proceeding.
There is in my view no arguable case of jurisdictional error by the Tribunal. Accordingly, I will 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 amount of $2,000. The applicant was concerned to know when she would be required to pay but did not make any submissions as to costs. Scale costs in this instance would be $2,500. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 September 2008
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