SZMQZ v Minister for Immigration & Anor [2009] FMCA 71 (9 February 2009)

Federal Magistrates Court of Australia

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SZMQZ v Minister for Immigration & Anor [2009] FMCA 71 (9 February 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMQZ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 71

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

Migration Act 1958 (Cth), ss.91R, 424, 424A, 424AA

Applicant:

SZMQZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2162 of 2008

Judgment of:

Driver FM

Hearing date:

9 February 2009

Delivered at:

Sydney

Delivered on:

9 February 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms B Anniwell Australian Government Solicitor

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, fixed in the sum of $4,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2162 of 2008

SZMQZ

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 Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The Tribunal decision was apparently handed down on 22 July 2008. The applicant is a citizen of China and had made claims of religious persecution based upon his religious faith. He was interviewed by a delegate of the department in relation to its claims. The delegate rejected those claims. On review before the Tribunal the applicant appeared at a hearing to give evidence and explain his claims on 28 May 2008.
2. I received as evidence the book of relevant documents filed on 17 September 2008 which sets out what transpired at the Tribunal hearing. I have no other evidence before me.
3. It is apparent from the record of that hearing and the Tribunal's reasons that the Tribunal disbelieved the applicant's claims. The Tribunal found that the applicant had provided inconsistent information. The Tribunal found the applicant's testimony vague and unconvincing and also confused and inconsistent. The Tribunal found that the applicant's claims lacked credibility. The Tribunal appears to have accepted what the applicant told the delegate in relation to his attendance at church in Australia. However, as the Tribunal had found the applicant to be an untruthful witness, it was not satisfied that the applicant engaged in that conduct other than for the purpose of strengthening his claim for a protection visa. The Tribunal states in its reasons, at page 86 of the court book, that it disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).
4. These proceedings began with a show cause application filed on 20 August 2008. That application contains three grounds:
   • 1. The Tribunal had bias against me and did not consider my application according to s.91R of the Migration Act 1958.
   • 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.
   • 3. The Tribunal did not make a decision on my application based on evidence and materials.
5. The applicant filed a short affidavit with his application in which he repeated the asserted breach of s.424A of the Migration Act and also alleged bias on the part of the Tribunal. However, he has provided no evidence in support of those claims. I accepted the affidavit as a submission.
6. An amended application was filed on 10 September 2008. The applicant appeared before me at a show cause hearing on 17 November 2008. At that time the applicant told me from the bar table that he had no knowledge of the amended application. He suggested that the application had been prepared without his knowledge and consent by a female person whom he named who had been assisting him in his proceeding before the Court. He also complained about a lack of assistance under the Minister's Panel Advice Scheme. In view of the circumstances I adjourned the show cause hearing until today. I also gave the applicant the opportunity to file and serve a further amended application by 30 January 2009. I gave the parties leave and liberty to apply for an order in relation to costs thrown away by reason of the adjournment against any person. The applicant is self-represented and has not incurred any costs. The Minister elected not to pursue any application for costs against any non-party in relation to the costs thrown away. The applicant had nothing to say on that issue.
7. The applicant told me today that he did not wish to rely on the amended application. He relies on the original application and the supporting affidavit. He told me that he had asked some other person to file a further application but nothing has been filed. The correspondence file contains a letter from Carroll & O'Dea Solicitors, dated 17 November 2008 and apparently received by the registry after the hearing on that day. In that letter the solicitors state that the applicant was provided with advice under the Panel Advice Scheme in writing on 23 October 2008.
8. I gave the applicant the opportunity today to make oral submissions in support of his application. He declined that opportunity. The solicitor for the Minister did make oral submissions. I accept those submissions.
9. There is no substance in any of the grounds of review advanced in the application and supporting affidavit. The Tribunal met its obligation pursuant to s.91R of the Migration Act to disregard the applicant's conduct in Australia. Having found that the applicant's motivation for that conduct was to enhance his protection visa claims, the Tribunal was required by the section to disregard the conduct and did so.
10. There is nothing to support the allegation of bias against the Tribunal. Neither is there any substance to the alleged breach of s.424A of the Migration Act. The Tribunal decision turned upon the information provided by the applicant to the Department and to the Tribunal and to inconsistencies within and between that information. This was not information requiring disclosure pursuant to s.424A.
11. It is apparent from what appears on pages 59 and 71 of the Tribunal decision on pages 80 to 82 of the court book that the Tribunal put to the applicant at the hearing in some detail what the Tribunal saw as adverse information. From my reading of that disclosure, however, it does not appear that the Tribunal was purporting to embark upon a course of oral disclosure pursuant to s.424AA of the Migration Act. The Tribunal does not refer to the section or any of the procedural requirements of the section. Neither does any of the information disclosed fall into a category of disclosable information. In my view, the course of disclosure undertaken by the Tribunal was an attempt by the Tribunal to ensure that it met its obligations under s.425 of the Migration Act to ensure that the hearing opportunity was a real and effective one by ensuring that the applicant understood the essential and significant issues on which the review was likely to turn. I see no error in the Tribunal's approach.
12. There is clearly no substance to the no-evidence ground in the application. The Tribunal decision was squarely based on the applicant's own evidence and the Tribunal's assessment of it. Neither is there any arguable basis of jurisdictional error otherwise apparent to me from my own examination of the material.
13. I find that the applicant has not raised an arguable case for the relief he claims. Accordingly, I will dismiss the applicant pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
14. Costs should follow the event in this case. The Minister is seeking costs fixed in the amount of $4,000. The applicant did not wish to be heard on costs. While the amount claimed is substantially above the scale amount in the Federal Magistrates Court Rules, I am satisfied that the claim is reasonable when assessed on a party and party basis. The hearing of this matter, which was adjourned, has effectively taken a full day. The applicant made allegations against a person who may have been assisting him as a migration agent which necessitated correspondence between the Minister's solicitors and the Law Society as well as the adjournment of the show cause hearing. Ultimately, those allegations were not pursued by the applicant in these proceedings.
15. I am satisfied that costs of not less than $4,000 have been incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 February 2009