SZTKO v Minister for Immigration

[2014] FCCA 806

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 806

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

Applicant: SZTKO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2541 of 2013

Judgment of: Judge Driver

Hearing date: 22 April 2014

Delivered at: Sydney

Delivered on: 22 April 2014

REPRESENTATION

The Applicant appeared by telephone

Solicitors for the Respondents:

Ms S Zarucki

Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit 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 $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2541 of 2013

SZTKO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 18 October 2013 seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 19 September 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China, Hebei Province.  He came to Australia on 29 July 2012 on a tourist visa valid for three months.  He subsequently applied for a protection visa which was refused by the Minister’s delegate.  That protection visa was sought on the basis of the applicant’s expressed fear of creditors in China and fear of him being sterilised because of his breach of Chinese family planning laws. 

2. The applicant sought review of the delegate’s decision by the Tribunal. The Tribunal conducted a hearing in accordance with s.425 of the Migration Act 1958 (Cth) (Migration Act). In its decision, the Tribunal rejected the applicant’s claims as not credible. The applicant had claimed that his wife had been involuntarily aborted but the Tribunal, while accepting that he and his wife had apparently lost a child, did not accept that this was a result of state intervention. The Tribunal also did not accept the applicant’s fear of sterilisation as being well-founded based on the country information before it.

3. The applicant’s claims to fear creditors in China were also rejected as being confused and unpersuasive.  The Tribunal concluded that the applicant did not qualify for protection in Australia either as a refugee or under the complementary protection provisions. 

4. In his show cause application, the applicant asserted again that the Chinese authorities would forcibly sterilise him and notes that the Tribunal rejected his review application. 

5. The only issue of law raised was an allegation of bias for which there is no support whatsoever.  In an affidavit filed with his show cause application, the applicant simply states who he is and attaches the decision of the Tribunal. 

6. The matter came before me on 12 November 2013.  At that time, I ordered a show cause hearing.  I gave the applicant the opportunity to amend his application and provide additional evidence.  He has not done so.  In further orders made on 8 April 2014, following a further directions hearing which the applicant attended, I noted his change of address for service to PO Box 273, Campsie and adjourned the show cause hearing until 10.15am today.  The applicant did not attend today’s show cause hearing.  With the assistance of the Mandarin interpreter, my associate was successful in contacting him by telephone.  The applicant told me that he was currently in Western Australia working and that he needed to work in order to pay off his debts in China.  There was background noise suggesting that he was at a workplace engaged in some manual occupation.  The applicant told me that it was not convenient for him to participate in the hearing by telephone but declined to ask for an adjournment on the basis that he expected to remain in Western Australia for the indefinite future and it was not convenient for him to return for a hearing.  He asked me to make an immediate decision.

7. I asked the applicant if there was anything he wanted to say in support of his show cause application, bearing in mind my doubt that he had raised any arguable case of jurisdictional error.  He said that he did not know what to say.  He confirmed his address for service in Campsie, notwithstanding that he is now apparently living in Western Australia.  I told the applicant that I proposed to dismiss his application and that I also proposed to make an order for costs against him in accordance with the Court’s scale.  He said that he would be unable to pay those costs. 

8. The applicant has failed to demonstrate any arguable case of jurisdictional error by the Tribunal. 

9. I will therefore order, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) that the application be dismissed.

10. The applicant may have difficulty in paying any costs order but the issue is whether the costs have been reasonably and properly incurred.  I am satisfied that they have been. 

11. I will further order that the applicant pay the first respondent’s costs and disbursements or and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  24 April 2014