SZCAF v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 528

FEDERAL COURT OF AUSTRALIA

SZCAF v Minister for Immigration & Multicultural & Indigenous Affairs   [2005] FCA 528

MIGRATION – Application for leave to appeal – no error of law by the magistrate – application dismissed.

Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397 – referred to

SZCAF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 116 OF 2005

HILL J
19 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 116 OF 2005

BETWEEN:	SZCAF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL
DATE OF ORDER:	19 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal from a judgment of the Federal Magistrates Court be dismissed.
2. The applicant pay the respondent’s costs of the application.

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 116 OF 2005

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

JUDGE:	HILL
DATE:	19 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J

1. Before the Court is an application for leave to appeal against a decision of a federal magistrate dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The learned magistrate dismissed the application pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules. 

2. The applicant is a citizen of the Peoples Republic of China.  He arrived in Australia in September 2002 and shortly thereafter applied for a protection visa.  A delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refused his application.  The applicant then applied to the Tribunal to review the delegate's decision.

3. It was the applicant's case before the Tribunal that he was a refugee as defined in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (referred to collectively as “the Convention”).  The applicant claimed to be a Falun Gong practitioner and leader in Tianjin.  He commenced learning Falun Gong in 1996.  He said that he had introduced his relatives, friends and former work colleagues to Falun Gong.  At the end of 1999, Falun Gong was, he said, outlawed in China.  He was detained by the police for almost a month and was subjected to torture.

4. He said he was forced to declare that he had separated from Falun Gong and after his release he was required to report to the local police station daily.  He gave some descriptions of the torture he said he had undergone.  He claimed that he had a well founded fear of persecution by reason of his adherence to Falun Gong.  He claimed to have travelled to Australia on a business visa in order to avoid being arrested.  The Tribunal noted that he had apparently come to Australia in June 2002 and returned to China before coming back to Australia in September 2002.  He said that he had returned to China to:

   “...avoid all my friends whom ever helped me to get a visa and passport to involved in my case and having a problem.”

5. The Tribunal noted that the applicant's claims were "highly generalised" and contained little detail.  The Tribunal noted that it was to be expected that a person who was a Falun Gong practitioner and leader would give more detail than the applicant in fact did.  The Tribunal indicated that it had real doubts as to the credibility of the applicant’s claims.  It noted also that, while there was more detail given concerning his alleged torture, these claims also lacked much specificity.

6. The Tribunal pointed to gaps and inconsistencies in the applicant's claim which caused the Tribunal not to accept his account.  It noted also that the applicant had no difficulty in obtaining permission to leave China and also that there had been two visits made by the applicant to Australia in 2002 before his last arrival on 11 September of that year.  The Tribunal did not accept the submission that the explanation for these visits was as the applicant suggested.

7. The Tribunal noted that the applicant had in fact not attended the hearing, notwithstanding that he had been advised that on the material before the Tribunal it would be unable to find in his favour.  Had he soattended, it is possible that the doubts, which the Tribunal had, might have been resolved by evidence.  The Tribunal indicated that it was not satisfied that the applicant had ever been a Falun Gong practitioner or leader or that he had ever been detained and tortured.

8. The applicant on 27 November 2003 filed an application for judicial review of the Tribunal's decision.  The application stated that the Tribunal's decision involved an error of law:

   “In that:

   (a)Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.

   (b)There was no evidence or other materials to justify the making of the decision”

9. Among other things, the applicant claimed, again, to be a Falun Gong practitioner and asserted that he faced a risk of being gaoled if returned to China. 

10. On 21 April 2004, the applicant signed short minutes of order which subsequently became orders of the Federal Magistrates Court.

11. The short minutes, which apparently were translated to the applicant, required him to file and serve an amended application giving particulars of each ground of review relied upon by 30 June 2004.  The short minutes noted that after the date for the filing of the amended application the respondent could file an application for summary dismissal.  The applicant did not, in compliance with the short minutes of order, file and serve an amended application.  Accordingly, the Minister sought summary dismissal of the application.

12. When the application for summary dismissal came before the magistrate, the applicant noted that he needed some documents from China.  The documents were, so the applicant said, evidence certifying that he was persecuted in China.  The learned magistrate pointed out that such evidence would not be relevant to the proceedings before the magistrate for judicial review.  The learned magistrate noted also that the application to the Court was not particularised.  He observed that opportunity had been given to the applicant to access the Court's legal aid scheme.  The applicant was unable to give any explanation as to why he had failed to comply with the court order to file an amended application for well over eight months.  The applicant was unable to indicate any real argument to create an expectation that if given more time he would comply with the order.  It was for that reason that the application for judicial review was dismissed.

13. It can be stated generally that the question whether leave to appeal against a decision involving a matter of practice or procedure should be granted requires that it be shown that the interlocutory decision is attended with sufficient doubt to warrant its being reconsidered; Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 33 FCR 397. It will be relevant also to determine whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

14. Where an issue of discretion is involved, it will be necessary for the applicant for leave to show some error of principle.  In a case such as the present it will not be irrelevant to the grant of leave whether the applicant has at least some chance of success in the application which has been dismissed.

15. The applicant has been unable to advance any submission before me such as would indicate any error on the part of the magistrate.  His only submission to me was that he wished to emphasise that if returned to China, he would be in "big trouble".  As I pointed out to him, this Court, like the Federal Magistrates Court, is not concerned with the merits of the Tribunal's decision.  Matters which go to the merits of the applicant’s case were matters for the Tribunal and not matters which could be raised in judicial review proceedings, let alone in an application for leave to appeal a decision of the magistrate striking out the application.

16. I should say, however, that I have read the decision of the Tribunal and there is nothing in that decision which suggests any jurisdictional error or, for that matter, any error of law in its decision.  Essentially, the Tribunal was not satisfied on the evidence before it that the applicant was a refugee within the meaning of the Convention. Perhaps, had the applicant attended before the Tribunal and given evidence, he might have been able to satisfy the Tribunal that his claims were well founded.  Despite being warned that the Tribunal could not make a decision in his favour without hearing from him he chose not to attend. 

17. In the circumstances, I would refuse leave to appeal the decision of the magistrate and order that the applicant pay the Minister's costs of the application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             29 April 2005

The applicant was self represented
For the Respondent:	Mr P Reynolds
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 April 2005
Date of Judgment:	19 April 2005