SZCAW v Minister for Immigration and Multicultural &

[2005] FCA 726

FEDERAL COURT OF AUSTRALIA

SZCAW v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 726

SZCAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD651 OF 2005

LINDGREN J
25 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD651 OF 2005

BETWEEN:	SZCAW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	25 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant pay the respondent’s costs of the application.

3.As to the whole of the costs specified in order (2), instead of taxed costs, the respondent shall be entitled to a sum of $700.

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	NSD651 OF 2005

BETWEEN:	SZCAW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE:	25 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By an application filed on 27 April 2005, the applicant applies for leave to appeal from an interlocutory judgment of the Federal Magistrates Court of Australia (‘FMCA’) given on 11 April 2005 by Driver FM.  No formal reasons for judgment were delivered but his Honour gave reasons which are recorded in the transcript, of which I have a copy.

2. The applicant filed in the FMCA on 1 December 2003 an application for review of a decision of the Refugee Review Tribunal.  The Tribunal’s decision was made on 30 September 2003 and handed down on 23 October 2003.  The Tribunal affirmed a decision not to grant to the applicant a protection visa.

3. On 22 April 2004, a Registrar made in the FMCA proceeding an order that the applicant file an application with particulars of the grounds of review by 28 June 2004.  On 6 December 2004, Driver FM granted the applicant leave to file an amended application by 20 December 2004, provided it propounded at least one jurisdictional error (with particulars), and also granted to the respondent Minister leave to apply for an order in chambers dismissing the application for review if the order just mentioned was not complied with, on the ground that no reasonable cause of action was disclosed in the existing application before the FMCA.

4. The applicant failed to comply with his Honour’s order. On 23 December 2004 his Honour made an order in chambers dismissing the application pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001.  In fact the applicant had filed a document entitled ‘Additional Information’ on 17 December 2004, but Driver FM took the view that that document did not satisfy the terms of his order.

5. On 6 January 2005, the applicant filed in the FMCA an application seeking to have the order of dismissal made on 23 December 2004 set aside.  In his affidavit accompanying that application, the applicant apparently relied on the ground that the order of dismissal had been made in his absence and that he had not been notified of the hearing.  It was true that he had not been notified of any hearing.  Nor had the respondent.  There was no hearing.  The order was made in chambers as had been foreshadowed on 6 December 2004.

6. The application filed on 6 January 2005 came on for hearing before Driver FM on 11 April 2005, the question before his Honour being whether he should set aside his order of dismissal made on 23 December 2004.  His Honour questioned whether he had jurisdiction to hear and determine the application, suggesting that the proper course might have been for the applicant to apply to this Court for leave to appeal.  However, he was, in any event, not satisfied that the applicant had advanced any reason as to why the order of dismissal should be set aside. 

7. His Honour noted that the applicant had been given several opportunities to file an amended application stating proper grounds of review with particulars and had failed to do so.  He further noted that at the directions hearing on 6 December 2004 the applicant had been put on notice that if he did not file an amended application, Driver FM would, on the respondent’s application, dismiss the application without a further hearing.  Accordingly, on 11 April 2005 Driver FM dismissed the applicant’s application for an order setting aside the order of dismissal.

8. The application for leave to appeal being called on today, the applicant has not appeared and I have heard his application in his absence.  In his application for leave to appeal, he stated his grounds as follows:

   ‘1.       I am a Falun Gong practitioner.

   2.        I would be jailed [sic] if I go back to China.

   3.        I was prosecuted [sic - persecuted] by the Chinese Government.’

9. In his draft notice of appeal which accompanied the application for leave to appeal, the grounds of appeal are stated as follows:

   ‘A.The decision involved an important exercise of the power conferred by the Migration Act and Regulations.

   B.If I go back to China, I would be jailed [sic] because I am a Falun Gong practitioner.’

10. In the ‘Orders Sought’ section of the application for leave to appeal, the applicant states:

    ‘A.      The decision that I meet refugee criteria.
               B.        The decision against the applicant be set aside.’

11. I see no reason to disturb the decision of the FMCA dated 11 April 2005.

12. I have read the book of relevant documents.  The applicant is a citizen of the People’s Republic of China and arrived in Australia on 30 July 2002.  He lodged an application for a protection (Class XA) visa on 12 September 2002.  On 16 September 2002 a delegate of the respondent refused to grant the visa and on 21 October 2002 the applicant applied to the Tribunal for review of that decision.

13. On 11 August 2003 the Tribunal wrote to the applicant informing him that it was unable to come to a favourable decision on the material before it, and therefore invited him to attend a hearing and to give oral evidence and to present argument.  The date fixed for the hearing was 9 September 2003.  The applicant was advised that if he did not attend and a postponement was not granted, the Tribunal could make a decision on his case without further notice.  He did not respond to the Tribunal’s letter.  The letter was sent to his last known address at Punchbowl by registered mail and a copy was sent to a post office box number supplied by the applicant.  The letter sent to the Punchbowl address was returned to the Tribunal.

14. On the date fixed for the hearing, the applicant did not appear and the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it: See s 426A of the Migration Act 1958 (Cth).

15. The Tribunal noted that the applicant claimed to be a Falun Gong practitioner and had practised Falun Gong in public places such as in public parks.  He claimed that when Falun Gong was banned, he was called to the police station and required to ‘confess’ to ‘misdeeds’, which he refused to do, and that he was then forced to undergo ‘re-education’, in which he was treated badly, both spiritually and physically.

16. The Tribunal summarised the Falun Gong movement and the Chinese authorities’ reaction to it.  The Tribunal accepted that, being a Falun Gong practitioner, a person may suffer persecution in China, but considered that the Tribunal needed to be satisfied, first, that the particular applicant was a practitioner, and, if so, whether, because of his status as a practitioner, he had a well-founded fear of persecution if he were to return to China.

17. The Tribunal noted that the applicant had provided no independent evidence to support his claim to be a Falun Gong practitioner.  The Tribunal referred to a statement by the Falun Gong organisation that genuine members seeking asylum would obtain ‘proofs’ from their local Falun centres.  The Tribunal noted, however, that applicants for protection can have difficulties in providing evidence, and accepted that decision-makers should take a ‘liberal attitude’ in relation to any requirement for proof.

18. Because the applicant had provided no evidence in support of his claims and had not given specific instances of persecution and had not attended the Tribunal hearing to provide any further evidence or detail, the Tribunal did not accept his claim that he was a Falun Gong practitioner.

19. There is no obvious error in the approach of the Tribunal and on the evidence before this Court, an appeal would be doomed to fail.

20. For this reason, the application for leave to appeal should be refused with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             25 May 2005

The applicant did not appear
Solicitor for the Respondent:	Ms M Asimus of Blake Dawson Waldron
Date of Hearing:	25 May 2005
Date of Judgment:	25 May 2005