SZBFW v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1243

FEDERAL COURT OF AUSTRALIA

SZBFW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1243

SZBFW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1178 OF 2004

JACOBSON J
20 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1178 OF 2004

BETWEEN:	SZBFW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	20 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed
2. The applicant pay the respondent’s costs.

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	N 1178 OF 2004

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

JUDGE:	JACOBSON J
DATE:	20 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is or purports to be an appeal from a decision of a Federal Magistrate.  The judgment was given on 12 July 2004.  The Magistrate dismissed the application for default of appearance pursuant to rule 13.03A(c) of the Federal Magistrate's Court Rules 2001.

2. When the matter was called on for hearing this morning, there was no appearance by the appellant.  I stood the matter in the list for ten minutes in case the appellant was unavoidably delayed.  It is now nearly 10.30 and there is still no appearance. 

3. Mr Markus has put before me six letters which I have marked as exhibit A in the proceedings.  I'm satisfied that the letters establish that the appellant was notified of today's hearing.  Indeed, two of the letters were sent by my associate by registered mail and the letters appear to have been signed for and acknowledged as having been received by the appellant.

4. Mr Markus asks me to proceed under order 52 rule 38A(1)(d).  It seems to me that this is the appropriate way to deal with the application. 

5. Mr Markus has filed a comprehensive outline of submissions which fully deal with the application and I will have his submissions which are dated 14 September 2004 placed with the papers. 

6. It is sufficient to say that the background to the matter is that the appellant is a citizen of China who arrived in Australia on a visitor's visa on 26 February 2002.  She lodged an application for a protection visa on 8 April 2002.  A delegate of the Minister refused to grant the appellant a protection visa and the appellant then sought review of the decision by the Refugee Review Tribunal.

7. The Tribunal provided its decision and reasons on 8 July 2003.  The Tribunal noted that an invitation had been sent to the appellant to give oral evidence and present arguments at a hearing, but that the appellant advised the Tribunal in writing that she did not wish to give oral evidence and consented to the Tribunal making a decision on the review without taking any further action to allow or enable her to appear.

8. The Tribunal's reasons were stated very shortly.  They were that the appellant had provided so few details that the Tribunal could not be satisfied as to the veracity of her claims.  The Tribunal said that on the basis of the scant information which the appellant had provided, the Tribunal could not be satisfied that she was now interested in pursuing Falun Gung, as she had claimed, or that the Chinese authorities had any interest in her past activity if she was indeed involved.

9. The Tribunal was therefore not satisfied on the evidence before it that the appellant had a well-founded fear of persecution within the meaning of the Convention. 

10. The application for review of the decision of the Tribunal was filed on 18 August 2003.  The grounds stated were that the decision of the RRT was induced by actual bias and that there was no evidence or other materials to justify the making of the decision.  No particulars whatsoever were supplied to support those grounds.

11. When the matter was called on before the Magistrate for hearing there was no appearance on behalf of the appellant as was noted in [1] of the learned Magistrate's reasons for judgment. 

12. The Magistrate then considered the question of the appropriate rule which applied under the Federal Magistrate's Court Rules and he came to the view that the application should be dismissed pursuant to rule 13.03A(c). 

13. It is plain on the authorities referred to by Mr Markus in his written submissions that the decision of the Magistrate is interlocutory.  Accordingly, leave to appeal would be necessary and in the absence of an application for leave to appeal the appeal must be dismissed as incompetent.

14. The submissions set out in paragraphs 20 to 33 of Mr Markus's written submissions seem to me to be correct and accordingly the orders that I make pursuant to order 52 rule 38A(1)(d) are that the appeal be dismissed as incompetent and I order that the appellant pay the respondent's costs of the appeal.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:            22 September 2004

Counsel for the Applicant:	There was no appearance for the Applicant
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 September 2004
Date of Judgment:	20 September 2004