NAXJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 641

FEDERAL COURT OF AUSTRALIA

NAXJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 641

MIGRATION – application for leave to appeal from decision of the Federal Magistrates Court – summary dismissal of application before the Federal Magistrates Court – no jurisdictional error – application dismissed

Federal Court of Australia Act 1976 (Cth) s 24
Federal Court Rules O 52 r 10
Federal Magistrates Court Rules r 13.10

Re Luck (2003) 203 ALR 1

NAXJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 637 of 2005

SACKVILLE J
20 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 637 of 2005

BETWEEN:	NAXJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	20 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs fixed at $1,200.

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 637 of 2005

BETWEEN:	NAXJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	20 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, a citizen of the People’s Republic of China, has filed an application for leave to appeal from a judgment of the Federal Magistrates Court delivered on 11 April 2005.  The learned Magistrate summarily dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’), handed down on 16 October 2003.  The RRT had affirmed a decision of a delegate of the respondent (‘the Minister’) not to grant the applicant a protection visa.

2. The Magistrate dismissed the proceedings pursuant to the Federal Magistrates Court Rules, r 13.10(a), on the ground that the application disclosed no reasonable cause of action. The order made by his Honour was interlocutory: ReLuck (2003) 203 ALR 1, at [8]-[9], per McHugh ACJ, Gummow and Heydon JJ. Accordingly, leave is required to appeal to this Court from the judgment of the Federal Magistrates Court: Federal Court of Australia Act 1976 (Cth), s 24(1)(d), (1A). Section 24(1A) provides that leave to appeal may be given by the Court or a Judge.

3. The Federal Court Rules (‘FCR’), O 52 r 10(2)(b), require an application for leave to appeal to be filed within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought, or within such further time as the Court or a Judge may allow.  It is not entirely clear whether O 52 r 10(2)(b) applies to an application for leave to appeal from the Federal Magistrates Court.  Rule 10(2)(b) seems to be ancillary to r 10(1), which refers to leave to appeal from an interlocutory judgment of ‘the Court’.  If, however, O 52 r 10(2)(b) does apply to the current application, the current application is out of time, as it was not filed until 26 April 2005, 15 days after the judgment of the Federal Magistrates Court was delivered.  On that basis, the applicant would require an extension of time for the filing of his application for leave to appeal from the interlocutory judgment.

4. The RRT provided the following summary of the applicant’s claims:

   ‘You are a follower of the I Kuan Tao religion, having learned it from your parents.  The religion was generally tolerated by the Chinese Communist Party but, when it started to repress Falun Gong, the Government also cracked down on I Kuan Tao.

   You were presumed to give up your beliefs by the government and your managers also started to criticise you.  Your bosses punished you by deducting money from your wages, and threatened to fire you.  Policemen started to visit your home and neighbours started to gossip about you.

   In 2001, following a “movement” by Falun Gong in Beijing, you were arrested in the belief that you were part of that movement.  You were beaten up.  Eventually, your parents paid money and you were released, but you lost your job.  Then friends suggested you escape to Australia.

   You fear you will be arrested again if you return to China.’

   The RRT recorded the applicant accepted this as a fair précis, except that he contended that the I Kuan Tao religion had never been ‘generally tolerated’ by the Chinese Communist Party. 

5. The RRT rejected that the substance of the applicant’s claims.  It pointed to significant contradictions between the applicant’s oral evidence and his earlier claims made in support of his application.  These included contradictory claims as to the number of passports he had obtained and the circumstances in which he had received them.  The applicant relied on a letter which purported to corroborate his dismissal from his employment, but the RRT concluded that this was a recent fabrication designed to enhance his claims.  The RRT also found that the applicant’s knowledge of the I Kuan Tao religion was limited.  For example, the applicant had no concept of the ‘Venerable Heavenly Mother’ which the independent evidence indicated is central to the religion.

6. In the absence of any independent evidence to support his claim of association with the religion, the RRT found that the applicant was not in fact an adherent of I Kuan Tao.  Accordingly, it concluded that the applicant would not face persecution in China for reason of religion.  It therefore rejected the applicant’s claim to have a well-founded fear of persecution for a Convention-related reason in China. 

7. The applicant commenced judicial review proceedings in this Court, but they were remitted to the Federal Magistrates Court. His application for relief under s 39B of the Judiciary Act 1903 (Cth) asserted that the RRT had ignored parts of the applicant’s claims and had reached a decision without reasonable and rational foundation.

8. At the directions hearing in this Court on 18 December 2003, at which the applicant was present and assisted by an interpreter, a number of orders were made.  These included an order that the applicant file and serve any amended application on or before 11 March 2004.  The applicant did not file any amended application.

9. On 15 February 2005, the Minister filed an application in the Federal Magistrates Court seeking an order of summary dismissal pursuant to the Federal Magistrates Court Rules, r 13.10(a), on the ground that no reasonable cause of action had been disclosed. This application was heard on 11 April 2005. The applicant appeared at the hearing and made submissions. He apparently sought more time to prepare and present additional documentation, but the Magistrate considered that he had had ample opportunity to file material in support of his claims had he wished to do so.

10. In his ex tempore judgment, his Honour noted that the RRT had plainly had serious credibility concerns about the applicant’s claims.  These concerns had been discussed with the applicant at the hearing, as had the country information that the RRT considered relevant.  His Honour expressed the view that it was:

    ‘abundantly clear from the RRT decision that no element of the applicant’s claims [had been] overlooked.  It follows that the application as framed by the applicant must fail …  I am persuaded that the high test for summary disposal on the basis of there being no reasonable cause of action has been met.’
    .

11. The draft notice of appeal provided by the applicant in support of his application for leave to appeal identifies the following ground:

    ‘The … Federal Magistrates Court did not take into account the argument that I put forward at the hearing and refused further consideration to my application.  My application was therefore dismissed as the filing of the Minister’s interlocutory application.  The Judge refused to accept my explanation of my delay in presenting amended application. 

    The reason was because the suspension of the previous agent’s Migration Agent Registration.  The Judge did not seem to understand it and refused my asking for another chance for submission of the Amended Application and my whole application was dismissed.’

12. An affidavit read by the applicant in support of the leave application asserts that the applicant prepared an amended application in the Chinese language and gave it to his migration agent for translation and submission.  He claims that the agent’s failure to do so was the result of the suspension of his licence.  The affidavit goes on to suggest that the applicant did not prepare himself well and thus did not get all his documents ready.

13. At no stage in these proceedings, which commenced in the Federal Magistrates Court in November 2003, has the applicant put forward any arguable grounds for challenging the RRT’s decision.  The RRT rejected the applicant’s factual claims and gave reasons for doing so.  There is nothing to indicate that the applicant was denied a fair opportunity to present his case to the RRT.

14. Nor is there anything to indicate that the Magistrate erred in summarily dismissing the proceedings.  It was open to the Magistrate to conclude that the applicant had had ample opportunity to prepare and file an amended application.  There was no error in the Magistrate’s conclusion that the application filed by the applicant disclosed no reasonable basis for the relief claimed.

15. I should add that the applicant was cross-examined on his affidavit in the present proceedings.  He said in the course of his cross-examination that the affidavit had been prepared for him by another migration agent and that he did not know what it contained as it had not been translated for him.  His evidence as to when he prepared the ‘amended application’ was confused.  If it matters, I do not accept that the applicant prepared an amended application in the proceedings determined by the Federal Magistrates Court.  Even now, he has not put forward any grounds that might raise an arguable case that the RRT committed a jurisdictional error.

16. In my view, the decision of the Magistrate is not attended with sufficient doubt to warrant it being reconsidered on appeal.  There would be no purpose in granting the applicant leave to appeal, assuming his application was made within time.  Accordingly, the application is dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             

The applicant appeared in person.

Solicitors for the respondent:	Clayton Utz
Date of hearing:	19 May 2005
Date of judgment:	20 May 2005