Affairs

[2005] FCA 1287

FEDERAL COURT OF AUSTRALIA

SZFLH v Minister for Immigration and Multicultural and Indigenous

Affairs [2005] FCA 1287

MIGRATION – application for leave to appeal from Federal Magistrate’s decision – no viable grounds for review of earlier Tribunal decision provided – application dismissed

SZFLH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 955 OF 2005

CONTI J
8 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 955 OF 2005

BETWEEN:	SZFLH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	8 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant to pay the respondent’s costs assessed at $1500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 955 OF 2005

BETWEEN:	SZFLH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	8 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from the judgment of Driver FM delivered on 23 May 2005, which dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 30 December 2004. The Tribunal affirmed the Ministerial delegate’s decision to refuse the applicant a protection visa. His Honour disposed of that application for review pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth), which empowers a Federal Magistrate to dismiss an application if the applicant is absent from a Court hearing (other than the first court appointed date). In the present case, the applicant failed to attend a non-compliance list hearing scheduled for 23 May 2005 before his Honour.

2. In response to the Federal Magistrate’s decision to summarily dismiss his application for review on 23 May 2005, the applicant filed two further applications on 14 June 2005. One was an application to the Federal Magistrates Court for an order under r 16.05 of the Federal Magistrates Court Rules to set aside the judgment entered against him in that Court. Rule 16.05 provides that the Federal Magistrates Court may set aside an order that has been entered, in the circumstance where that order has been made in the party’s absence. The other was an application to the Federal Court for leave to appeal from the Federal Magistrate’s above judgment delivered on 23 May 2005. When the present application to the Federal Court first came on for hearing before me on 29 July 2005, I adjourned the same until 1 September 2005, so as to enable the Federal Magistrates Court to deal with the first mentioned application made under r 16.05. Due to the Federal Court’s inability however to obtain an interpreter fixed for hearing before me on 1 September 2005 of this present application before me, the hearing was stood over until 8 September 2005. The applicant appeared in person, that is to say, without legal representative, on both occasions.

3. In the meantime on 22 August 2005, Driver FM dismissed the applicant’s application for an order under r 16.05 of the Federal Magistrates Court Rules.  To date, so far as I am aware, the applicant has not sought to file an application for leave to appeal from that judgment of the Federal Magistrates Court.

4. Filed by the applicant in support of the application for leave to appeal to this Court from the decision of Driver FM of 23 May 2005 was an affidavit sworn by him on 10 June 2005.  It reads literally as follows:

   ‘When I found that there is jurisdictional error with the Tribunal’s decision, I filed a notice of appeal to the Federal Magistrates Court.  At the direction of hearing, I was told that the hearing date will be on 9 August 2006 at 10.15am.  I filed an amended application as required by Federal Magistrates Court and I received a bill of A$345 setting down fee from the Federal Magistrates Court.  On 23 May 2005, I paid the setting down fee, but did not know that I was required to attend the Court on that day.  I missed the hearing and an order to dismiss my application in my absence was made on that day.  I did not know what went wrong.  I did not [attend] that hearing at all, if I did not want to attend the hearing I would not have paid the setting down fee.  I don’t think my application should be considered in that way.  I believe that the order should be set aside.

   RRT failed to assess the chance of my persecution on my return to China.  RRT failed to consider my claims.  RRT had bias against me and could not consider my application in a fair way.  RRT could not provide evidence and materials to support its decision.  RRT failed to provide a rational or logical foundation for not granting me the protection visa.  I found these errors and lodged my application for review at Federal Magistrates Court.  However, even though I filed an amended application for my review on time, and I did whatever the Court required me to do, I paid the setting down fee on 23 May 2005, I did not attend the hearing on 23 May 2005, because I did not even know that I had that hearing.  My application was dismissed in my absence.  I do need to get my application reviewed at Court.  I sincerely hope that I can have a chance to get my application reviewed.’

5. In essence, the applicant attested to having attended at the Federal Magistrates Court registry on 23 May 2005 in order to pay the setting down fee and asked the Court to infer from his failure to appear later before Driver FM on the same day, that he was ignorant of his obligation to attend the non-compliance list hearing. 

   The earlier processes undertaken by the applicant in the Federal Magistrates Court

6. The subject of the hearing scheduled on 23 May 2005 before Driver FM was the applicant’s alleged failure to comply with an order of the Federal Magistrates Court made on 24 January 2005, which required him to file and serve by 18 April 2005 an amended application giving full particulars of each ground of review intended to be relied upon. 

7. The applicant’s original application for review, which he filed in the Federal Magistrates Court on 11 January 2005, contained the following grounds (also read literally):

   ‘1. The Tribunal did not follow the procedure set out in the relevant subdivision of the Migration Act 1958 for the applicant to respond properly to the questions put forward to him at the hearing held by the Tribunal on 2 December 2004. The Tribunal fell into jurisdictional error in this respect.

   2.  The Tribunal found (at page 9, paragraph 1) that the applicant was not “harmed or harassed” by the authorities in his home country.  The Tribunal fell into jurisdictional error in making this finding.

   3. The Tribunal did not provide the applicant with Natural Justice.  At the hearing, the applicant was not given enough time to complete his answers to the questions raised by the Tribunal member.  This may well affect the decision made by the Tribunal member.  Had the applicant been given enough time to answer the questions properly, the decision may well be favourable to the applicant.’

8. Subsequently on 13 April 2005 the applicant filed in the Federal Magistrates Court an amended application pursuant to that Court’s order of 24 January 2005, the same containing the following purported ground of review:

   ‘Country profile in China concerning human rights conditions prepared by the Australian Department of Foreign Affairs specially in connection with determination of refugee status for the Chinese nationals wishing to seek protection in Australia.  Please note that the original page numbers in the document remain unedited.’

   To that amended application was annexed another document, headed ‘Department of Foreign Affairs and Trade – Country Profile For Use in Refugee Determination’; the amended application could not be described as containing any potentially viable ground for review of the Tribunal’s decision of 30 December 2004.

9. On 29 April 2005, the solicitors for the Minister wrote to the applicant and informed him that at the Minister’s request, the Federal Magistrate had placed his application for review of the Tribunal’s decision in the non-compliance list.  The relevant part of that letter was in the following terms:

   ‘The Court has notified us that it has been listed before Federal Magistrate Driver in the non-compliance list on Monday 23 May 2005 at 10.15am at the Law Courts Building Queens Square, Sydney.

   If you file and serve an amended application giving complete particulars of the grounds of review on which you rely before 23 May 2005 we may consider requesting the Court to vacate the matter from the non-compliance list…’

   The name and telephone number of the solicitor responsible for carriage of the matter on behalf of the Minister were both provided.  It may be said that this letter might have more explicitly spelt out the need for the applicant to attend the Federal Magistrate’s Court at time and place so stipulated, particularly in the context of a self-represented litigant apparently or unlikely to be unable to speak or read English.  In the events which have happened, that conceivable shortcoming has no decisive consequences adverse to the applicant. 

10. On 23 May 2005, the application came before Driver FM in the non-compliance list at the time and place as foreshadowed in the notice of 29 April 2005. Driver FM dismissed the application for review pursuant to r 13.03A(c), by reason of the applicant’s non-attendance at that hearing.

11. On 22 August 2005, the applicant’s application to have his Honour’s orders of 23 May 2005 set aside pursuant to r 16.05 came on for hearing before Driver FM. The applicant filed in support of the applicant an affidavit in similar terms to that which he has filed in the current proceedings in the Federal Court. The applicant was cross-examined on that affidavit and in particular on the correspondence which he had received both from the Minister’s solicitors and from the Court, subsequent to the Tribunal’s decision. Driver FM described the applicant’s evidence to be to the effect that he had somehow ‘juxtaposed the obligation to attend court at 10.15am on that day with the separate obligation advised by the Court to pay the setting down fee.’ I observe that the letter concerning payment of the setting down fee sent to the applicant by the Court registry merely required that those fees be paid ‘immediately’, but did not specify any date by which this was to be done. The letter did state that the payment was ‘overdue’. In any event his Honour expressed doubt as to the letter constituting ‘… sufficient explanation for the applicant’s non-attendance at court on 23 May 2005’. His Honour considered that the applicant could and should have done more for the protection of his own interests by ensuring that he had a sufficient understanding of the correspondence, particularly the correspondence concerned with the time and purpose of prospective Court hearings.

12. Driver FM further found that even had he accepted the adequacy of the applicant’s explanation for his failure to attend the Court on the relevant occasion, he still would not have set aside the 23 May 2005 Court orders, because the application for review of the decision of the Tribunal did not raise any serious question to be tried.  His Honour addressed each of the three purported grounds of review contained in the applicant’s original application for review to the Federal Magistrate’s Court of the Tribunal’s decision before expressing his conclusion. 

13. His Honour interpreted the first ground of review to be associated with the third ground of review, that is, the claim that the Tribunal member had not allowed the applicant sufficient time in which to answer its questions, and thereby deprived him of natural justice. His Honour considered whether this allegation amounted to a breach of the ‘fair hearing rule’ contained in s 425 of the Migration Act 1958 (Cth). His Honour held that neither grounds one or three could be sustained and upheld in the absence of evidence in support of the circumstances purportedly raised, and observed that no evidence had been adduced by the applicant, either in the form of a transcript of the hearing before the Tribunal or otherwise. When asked by his Honour whether he intended to adduce any further evidence in support of his application, the applicant declined and appeared to indicate to the contrary, stating in effect that his application in its present form of expression was ready for hearing. In the absence of evidence, both the purported first and third grounds of review in his Honour’s opinion were inherently inadequate and insufficient.

14. His Honour characterised the second ground in support of the application for review however as a general allegation of jurisdictional error, and hence his Honour recorded that he ‘explored with the applicant his concerns about the [Tribunal] decision’, and that it became clear to his honour that the applicant merely disputed the Tribunal’s factual finding, rather than the legal viability of it.  His Honour concluded in effect that the Tribunal member had determined that on the applicant’s evidence presented to the Tribunal, his claims did not establish a well-founded fear of persecution. 

15. For those reasons, the Federal Magistrate disposed of the application thus purportedly brought under r 16.05.

    The application for leave to appeal to the Federal Court

16. The applicant’s submissions to this Court consisted essentially of a reiteration of the contents of his affidavit sworn 10 June 2005 and of his submissions made to the Federal Magistrate to the effect that his payment of the setting down fee on the same day as his hearing in the non-compliance list constituted circumstantial evidence of his absence of knowledge of that hearing. 

17. The applicant did not otherwise seek to present evidence to the Court by way of explanation for his absence from the hearing before Driver FM on 23 May 2005.  In that respect, I have considered his evidence tendered in chief to Driver FM on 22 August 2005, and thereafter given under cross-examination by the Minister’s solicitor.  In all the circumstances, I would reach the same conclusion as did Driver FM, namely, that the applicant did not take adequate steps to ensure that he understood the correspondence served upon him in respect of the hearing date in the Federal Magistrates Court, in circumstances whereby the conclusion should be drawn as to relevant default on his part in the reasonable pursuit of his purported application for review of the Tribunal’s reasons for the decision. 

18. Having considered the reasons for the Tribunal’s decision and the findings thereby made, I have reached the same conclusion as his Honour as to the absence of viability of the applicant’s purported grounds for review, and otherwise as to the absence of vulnerability of the Tribunal’s decision to judicial review.  The Tribunal was not satisfied that the applicant had any real chance of suffering harm from his former employer upon his return to China; moreover the Tribunal was not otherwise satisfied that any harm that the applicant claimed to have suffered had been for a Convention reason.  The Tribunal recounted fairly and adequately each of the claims made by the applicant to the Tribunal, and based its conclusions on identified inconsistencies in the applicant’s account and the difficulty in any event of discerning the basis for his claim of persecution and the like, whether by reason of factors of race, religion, nationality, political opinion or membership of a particular social group.  I am unable to identify any error of fact or law in the Tribunal’s reasons for decision, at any rate of any material or decisive significance.  Moreover I am unable to discern any viable basis for the proposition that he was not given a reasonable opportunity to provide answers to the Tribunal’s questions, or otherwise to satisfy the Tribunal of its well-documented concerns.  Nor am I able to identify any realistic or reasonable prospect of successfully establishing the existence of jurisdictional error on the Tribunal’s part.  It was readily apparent to me that after having been invited to address the Court as to whether he wished to add to the written material he had placed before the Court, the applicant was seeking merely to delay the inevitable.  That is not to say that his behaviour in Court was other than pleasantly courteous.  I gained the clear impression his purported grounds for review bore the hallmarks of authorship of some unidentified third party having access to some form of precedent of migration reviews and appeals. 

19. Accordingly, leave to appeal must inevitably be refused and the applicant ordered to pay the Minister’s costs which were assessed at $1500, and in my opinion, reasonably so. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             14 September 2005

The applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Dates of Hearing:	29 July 2005, 1 and 8 September 2005
Date of Judgment:	8 September 2005