SZNBJ v Minister for Immigration
[2009] FMCA 953
•16 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 953 |
| MIGRATION – Application for judicial review – only merits review grounds advanced – application dismissed. |
| Migration Act 1958, s.91R(3) |
| Applicant: | SZNBJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3270 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 11 September 2009 |
| Date of Last Submission: | 11 September 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr D. Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 3270 of 2008
| SZNBJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 11 November 2008. The Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.
In his application, filed on 10 December 2008, the grounds of application asserted jurisdictional error “in that it incorrectly applied s.91R(3) of the Migration Act 1958 (“the Act”).”
The particulars are set out thereunder. They do not raise anything that could said to be jurisdictional error other than “the Tribunal failed to invite the applicant to establish the purpose of his Falun Gong practice in Australia.”
The affidavit in support of the application merely annexed the Tribunal’s decision.
On 4 February 2009, Registrar Caporale ordered the applicant to file and serve an amended application, if any, by 13 April 2009, and to file and serve written submissions by the same date.
The applicant did not file such written submissions, and the first respondent filed contentions of fact and law on 22 June 2009.
On 24 June 2009, Riethmuller FM relevantly ordered the applicant to file and serve contentions of fact and law on or before 21 August 2009. He did not do so.
When the matter came before the Court, the applicant informed me that he had not complied with the above orders because he did not have legal representation. He did, however, confirm that the first respondent’s contentions of fact and law had been translated to him in at least sufficient detail for him to understand their purport. He made no application for adjournment to seek legal advice or other assistance.
The applicant asserted facts that supported his fear of persecution should he return to China.
The first respondent was content to rely upon the contentions of fact and law filed. Counsel for the Minister correctly submitted that the applicant had not raised anything before the Court that had not been considered by the Tribunal.
Insofar as the applicant has sought to revisit the findings of fact made by the Tribunal, his application is plainly simply merits review and does not disclose any jurisdictional error.
Insofar as the application asserts that the Tribunal failed to invite the applicant to establish the purpose of his Falun Gong practice in Australia, the written contentions of the first respondent read as follows:
“42. The applicant’s particulars appear to contend that the applicant was not given a fair opportunity to establish that he had practised Falun Gong in Australia before the Tribunal reached its conclusion that his attendance at the two public Falun Gong gatherings were solely for the purpose of strengthening his claims to be a refugee.
43. The Tribunal decision record devotes four pages to the questions that were put to the applicant about his Falun Gong activities. The applicant was given a fair opportunity to give an account of his Falun Gong practice, both in China and in Australia.
44. The Tribunal did not conclude that the applicant had practised Falun Gong for the purpose of his current visa application. The Tribunal concluded that the applicant was not a credible witness, and rejected his claims about the risk of persecution, should he return to China, on account of his Falun Gong beliefs, in their entirety (Court book p 74, paragraph 44).”
I have had careful regard to the written facts and contentions filed by the Minister. In my view, the analysis of the history of the matter as set out therein is entirely correct.
The submissions I have set out above dealing with the issue of the applicant’s opportunity to put his case about Falun Gong are also correct.
Notwithstanding the inadequacy of the case presented by the applicant, I have, myself, read the decision of the Tribunal carefully with a view to seeing if it discloses jurisdictional error. In my view, the Tribunal’s decision shows a careful and thorough analysis of the evidence before it, and the conclusion reached by the Tribunal is unimpeachable. There is no jurisdictional error disclosed.
In the circumstances, this application is without merit and the application will be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 16 October 2009
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