SZMUC v Minister for Immigration

[2008] FMCA 1646

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMUC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1646

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), ss.424A, 426A

Applicant: SZMUC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2474 of 2008

Judgment of: Driver FM

Hearing date: 8 December 2008

Delivered at: Sydney

Delivered on: 8 December 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 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 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 2474 of 2008

SZMUC

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 decision was handed down on 26 August 2008. 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 religious persecution. He arrived in Australia on 22 February 2008 on a transit visa. He applied to the Minister's Department for a protection visa on the same day. The Minister's delegate rejected that application on 16 May 2008. The applicant applied to the Tribunal for a review of that decision on 20 June 2008. On 2 July 2008 the Tribunal wrote to the applicant inviting him to appear at a hearing before the Tribunal. The hearing was scheduled for 5 August 2008. The applicant accepted that invitation on 8 July 2008. However, he did not attend the Tribunal at the appointed time and place. On 4 July 2008 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) inviting comments on adverse information. The applicant did not respond.

3. In the light of the applicant's non-attendance and his non response to the s.424A invitation it was open for the Tribunal to proceed in the applicant's absence. The Tribunal elected to proceed in his absence pursuant to s.426A of the Migration Act. The Tribunal found that the applicant's claims were vague and lacking in detail. On the basis of the very limited information before it, the Tribunal did not accept the applicant's claims.

4. These proceedings began with a show cause application filed on 24 September 2008.  The applicant now relies upon an amended application filed on 27 November 2008.  There are two grounds in that application:

   1. The Tribunal failed to consider the claims of my application.

   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 s.424A 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 mentioned had to be provided in writing (SAAP v Minister for Immigration and Multicultural and [Indigenous] Affairs [2005] HCA 24 (18 May 2001).

5. The applicant also relies upon an affidavit filed with his original application which I received as a submission.  I invited the applicant to make oral submissions at the hearing before me today.  The applicant told me that his mind was muddled and he was unable to take advantage of that opportunity.  In view of the fact that the applicant is self-represented and he was not able to take advantage of the opportunity to make oral submissions I have considered for myself whether there is any arguable case for jurisdictional error in the Tribunal decision or its process.  I conclude that there is not.

6. The Tribunal decision discloses that the Tribunal did consider the applicant's claims which were lacking in content. The Tribunal met or exceeded its obligations under s.424A of the Migration Act. The Tribunal was entitled to exercise its discretion pursuant to s.426A of the Migration Act to proceed in the applicant's absence. In view of the applicant's failure to attend the hearing to which he was invited and his failure to respond to the invitation to comment, the Tribunal was left in no better position than it was when the hearing invitation was issued. The failure of his review application was almost inevitable.

7. I find that there is no arguable case for jurisdictional error by the Tribunal. 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”).

8. Costs should follow the event in this case. The Minister seeks scale costs in the sum of $2,500. 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 eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  10 December 2008