SZDVU v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 646

FEDERAL COURT OF AUSTRALIA

SZDVU v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 646

SZDVU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD594 OF 2005

BENNETT J
9 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD594 OF 2005

BETWEEN:	SZDVU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	9 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused with costs.

2.The respondent has leave to forward to chambers material setting out the costs sought and the basis upon which costs are sought.

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	NSD574 OF 2005

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

JUDGE:	BENNETT J
DATE:	9 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of the Federal Magistrate Lloyd-Jones of 5 April 2005. 

2. On 23 September 2004, a Registrar of the Federal Magistrates Court made orders requiring the applicant to file and serve an amended application giving full particulars of each ground of review to be relied upon by 14 December 2004.

3. On 14 December 2004, the respondent’s solicitor received a facsimile to which was attached a document headed ‘Amended Application’ in the form of a half page typed letter signed by the applicant.  That letter contained a statement that the Refugee Review Tribunal (‘the Tribunal’) had made various errors, accusations of bias on the part of the Tribunal member and a statement that the reason the visa application had been rejected was that the Tribunal member did not understand the activities the Falun Gong, of which the applicant claimed to be member.  Lloyd-Jones FM determined that there was no identification of any jurisdictional error made by the Tribunal and that the application contained no particularisation or detail to support that claim.

4. The procedural history of this matter is as follows:

   • On 10 February 2004, the applicant lodged his application for a protection visa. 
   • On 9 March 2004, a delegate of the respondent (‘the delegate’) refused to grant the applicant a protection visa.
   • On 8 April 2004, the applicant applied to the Tribunal for review of that decision. 
   • On 27 April 2004, the Tribunal sent a letter to the applicant inviting him to a hearing before it.
   • On 28 April 2004, a copy of that letter was re-sent upon notification of a change of address.
   • On 7 May 2004, the Tribunal received a response to that hearing invitation which indicated that the applicant did not wish to attend the hearing and consented to the Tribunal proceeding to make a decision on the papers without taking any further action. 
   • On 3 June 2004, the Tribunal affirmed the delegate's decision. 
   • On 17 June 2004, the applicant applied to the Federal Magistrate's Court for review of that decision. 

5. On 5 April 2005, Lloyd-Jones FM ordered the application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court rules for failing to comply with the orders of the Court with respect the filing of the amended application. In addition, his Honour considered the Tribunal's reasons and noted that the material before the Tribunal was scant and that the applicant had given the Tribunal very little information in respect of his application to enable it to form any conclusions as to his claim to be a refugee.

6. Lloyd-Jones FM observed that the allegation of bias ‘was nothing more than a bald statement without any supporting evidence’.  His Honour also found that the Tribunal's decision and the supporting materials contained in the original application did not disclose any error on the part of the Tribunal.

7. At [14] of Lloyd-Jones FM’s reasons, his Honour concluded that:

   ‘The pleadings in this application disclosed no jurisdictional error and contained no supporting material.’

   In the same paragraph, his Honour observed that:

   ‘The applicant was given opportunities to prosecute his matter but these were not pursued.’

1. His Honour upheld the respondent's application and dismissed the substantive application that had been filed on 17 June 2004.  That order was an interlocutory order for which leave to appeal is required.

2. The application for leave to appeal from a decision of Lloyd-Jones FM, filed on 19 April 2005, is accompanied by an affidavit.  Apart from assertions as to error on the part of the Tribunal the affidavit states:

   ‘The respondent was not satisfied with the amended application and I was called to the court on 5 April 2005.  The judge did not take into account any of my explanation and dismissed my application even though I had submitted the required amended application.  The judge did not consider my application at all then refused my application.’

3. A reading of his Honour's reasons does not in my opinion support that assertion.  The draft notice of appeal submitted with the application for leave sets out the following grounds:

   ‘2.The Judge at Federal Magistrates Court did not take into account the argument that I put forward at the hearing and refused my application without giving careful consideration of my application.

   3.The Tribunal failed to exercise its jurisdiction as it failed to raise reasonable grounds for not granting a protection visa to me.

   4.RRT failed to provide a rational or logical foundation for refusing my application for a protection visa.’

4. It can be seen that no proper particulars are given to identify or support a claim of any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate.

5. When the matter was before me for hearing the matter was called outside the Court on two separate occasions during the course of the morning.  The applicant did not appear.  Some inquiries were made by the solicitor for the respondent with the assistance of a Mandarin interpreter to try and contact the applicant.  Those attempts were not successful, in that the telephone number given by the applicant on his application was not apparently his telephone number.  I am informed by Ms Crawley, for the respondent, that a letter was sent by her, by courier, on 6 May 2005 notifying the applicant of the fact of and date of the hearing of his application.  I am satisfied that the applicant has been so notified.

6. In the circumstances, I have decided to proceed with the application today.  It is incumbent upon the applicant to establish that the decision of the Federal Magistrate is attended by doubt and that substantial injustice would result if his application were refused supposing the decision to be wrong (Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397)

7. I note that the direction that the applicant file an amended application in the Federal Magistrates Court was made by consent and I note the reasons of the Federal Magistrate in considering that amended application.  The applicant has asserted that his Honour did not consider his application.  Having considered his Honour's reasons, there does not seem to me to be any basis for such a contention.  Not only did his Honour deal with the matter before him directly, he also considered the Tribunal decision, recognising that the Court should independently consider whether an arguable case could be made on the basis of the material before it.  His Honour also concluded that the pleadings in the application before him disclosed no jurisdictional error and were not supported by other material.

8. In any event, as is submitted by the respondent, it is apparent from the draft notice of appeal before me that the matters raised do not amount to jurisdictional error on the part of the Tribunal.  Accordingly, I propose to refuse the application for leave to appeal.

9. I order that the application for leave to appeal is refused with costs.  I give leave to the solicitor for the respondent to forward to my chambers an affidavit setting out the costs that are sought and the basis upon which those costs are sought.

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

Associate:

Dated:             24 May 2005

The applicant did not appear

Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 May 2005
Date of Judgment:	9 May 2005