SZEAH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 904

FEDERAL COURT OF AUSTRALIA

SZEAH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 904

SZEAH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 836 of 2005

BRANSON J
21 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 836 of 2005

BETWEEN:	SZEAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	21 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 836 of 2005

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

JUDGE:	BRANSON J
DATE:	21 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has applied for leave to appeal from a judgment of the Federal Magistrates Court delivered on 10 May 2005.  The applicant had sought judicial review by the Federal Magistrates Court of a decision of the Refugee Review Tribunal (‘the Tribunal’) to affirm a decision of a delegate of the respondent not to grant the applicant a protection visa.  Lloyd-Jones FM upheld an application of the respondent to dismiss the application for judicial review for failure to comply with orders of the Federal Magistrates Court.  His Honour’s judgment was interlocutory.  Accordingly, the applicant requires leave of the Court or a Judge to appeal from it (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)).

2. The broad principles governing when leave to appeal will be granted are found in numerous judgments of the Court, but may be traced back to Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In that case the Full Court adopted the tests previously set out by the Supreme Court of Victoria, namely:

   (a)whether the decision at first instance was attended by sufficient doubt to warrant it being reconsidered; and

   (b)whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong.

   It is for the applicant to satisfy both of these tests in the affirmative:  Ogawa v University of Melbourne (No 2) [2004] FCA 1275 at [28].

3. The Full Court has recognised that there are circumstances in which these tests are not necessarily appropriate.  As I noted in Johnston v Cameron (2002) 124 FCR 160 (‘Johnston v Cameron’) at [8], leave to appeal is more readily granted in a case in which an order, if allowed to stand, will have the practical effect of determining the applicant’s entitlement to relief than in the case of an order concerning matters of practice and procedure. The judgment of the Federal Magistrate effectively determined the right of the applicant to challenge the decision of the Tribunal and therefore resulted in the applicant losing an entitlement to remain in Australia. It therefore falls within the former of the categories that I identified in Johnston v Cameron.

4. The applicant is a Chinese woman who arrived in Australia on a business visa on 30 January 2004.  Her application for a protection visa was received by the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) on 25 February 2004.  The applicant’s husband was included in the application, as a member of the applicant’s family group.  The statement accompanying her application for a protection visa indicates that her involvement in industrial action caused her to be removed from her previous employment.  It asserts that the strike had been organised by labour unions to protest against the poor welfare offered to them by the state-owned enterprises, and that in China organising or participating in an unauthorised strike is illegal.  The applicant claims that because of the ‘government’s sanction’ she was unable to find work and that the restaurant she subsequently opened fell into trouble when her involvement in the strike came to the attention of the relevant authorities.  Her statement contains the following assertion:

   ‘Acheng Industry & Commerce Administrative Bureau sent me a warning letter that they intended to cancel my business license because of my opposition to the government.  Public servants from Acheng Epidemic Prevention Station and Acheng Tax Office also abused their authorities – they blackmailed me on a frequent basis.

   Recently I received a summon from the court requesting me to respond to an allegation of illegal operation of business.  Fearing that I would be unjustly sentenced, I left China and then came to Australia to seek protection.  Being a victim of the government’s misuse of authority, I sincerely ask Australian Immigration Department to grant me a protection visa.’

5. The delegate of the respondent treated the applicant’s claims as falling within the Convention ground of ‘political opinion’.  The applicant was refused a protection visa on 16 March 2004, as was her husband.

6. The Tribunal received an application for review of the decision of the delegate of the respondent on 7 April 2004.  No new information was provided to the Tribunal.  On 27 April 2004 the Tribunal wrote to the applicant and informed her that the Tribunal was unable to make a decision in her favour on the information before it alone.  The Tribunal invited the applicant to attend a hearing scheduled for 24 May 2004.  The invitation contained the following warning to the applicant:

   ‘If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.’

7. The applicant responded in writing to the invitation on 7 May 2004, indicating that she would attend and that a family member wanted a separate hearing.  However neither the applicant nor her husband attended the hearing.  On the day of the scheduled hearing the applicant contacted the Tribunal and informed it that she was running 15 to 20 minutes late. However she did not attend the Tribunal at all on that day or, indeed, thereafter.  The hearing before the Tribunal was cancelled.  The applicant did not thereafter contact the Tribunal with respect to her failure to attend the hearing.  The Tribunal made a decision to affirm the decision of the delegate of the respondent on 28 May 2004.  This decision was handed down on 22 June 2004.

8. The Tribunal’s written reasons for decision record that the Tribunal was not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.  The Tribunal acknowledged that the concept of onus of proof is not appropriate to administrative inquiries and decision-making, but stated that a decision-maker is not required to make the applicant’s case for him or her.  The Tribunal noted the lack of specific information about the applicant’s claims and that the applicant had not provided copies of any of the correspondence or documents referred to in her statement to the Department.  The written reasons for decision record that the Tribunal would have been interested in information as to whether the applicant received the summons she claims to have received before she applied for her passport.

9. The applicant filed an application for judicial review in the Federal Magistrates Court on 19 July 2004.  The application contained the following grounds:

   ‘1.The Tribunal found (at page 6) that the corruption, extortion and bribery by officials are common in China was not the essential and significant reason for the persecution they fear as required by s 91R(1)(a) of the Migration Act.  The Tribunal fell into jurisdictional error in making this finding.

   2.The Tribunal found (at page 6) that there is insufficient evidence to support applicant’s claims there was anything special about the Acheng Epidemic Prevention Station and the Acheng [sic].  The Tribunal fell into jurisdictional error in making this finding.

10. On 21 October 2004 a Deputy District Registrar directed that the applicant file and serve an amended application and supporting information by 10 January 2005.  The applicant failed to do so.

11. On 8 April 2005 the respondent filed an interim application for orders dismissing the proceeding on the basis that either:

    (a)the application disclosed no reasonable cause of action, the proceeding was frivolous or vexatious or the proceeding was an abuse of the process of the court (see r 13.10 of the Federal Magistrates Court Rules); or

    (b)the applicant was in default of the orders made by the Deputy District Registrar (see r 13.03(2)(b) of the Federal Magistrates Court Rules).

12. The respondent filed an affidavit in support of her application.  She also made oral submissions at the hearing.  The applicant appeared in person at the hearing with the assistance of an interpreter.  When given the opportunity to make submissions on the respondent’s application, the applicant simply requested more time to enable her to make inquiries in China with a view to obtaining more information to support her case.  She attempted to explain her absence from the Tribunal hearing on the basis that she could not locate the building where the hearing was to be held but she gave no explanation as to why she did not thereafter notify the Tribunal of her problems in this regard.  However the applicant did indicate that she had told her migration agent that she had missed the hearing.

13. The Federal Magistrate noted that the applicant had received advice from an adviser through the Pilot RRT Legal Advice Scheme (NSW).  His Honour further noted that the directions made by the Deputy District Registrar on 21 October 2004 had been made by consent, with the applicant being assisted by an interpreter.

14. His Honour decided that it would be inappropriate to penalise the applicant for the contents of her application.  He inferred that the application had been drafted in an attempt to initiate the proceeding within the statutory time limit.  However his Honour considered that, in light of:

    ·      the applicant’s access to assistance for the drafting of an amended application;

    ·      the fact that the applicant consented to the timetable set by the Deputy District Registrar;

    ·      the fact that the importance of the steps directed by the Deputy District Registrar had been explained to the applicant; and

    ·      the applicant’s admission that she had not taken any further step to prepare for the final hearing of the matter,

    if he did not accede to the respondent’s application it was likely that the applicant would have appeared at the final hearing in exactly the same circumstances as those in which she appeared before the Federal Magistrate on that day.

15. As mentioned above, on 10 May 2005 the learned Federal Magistrate upheld the respondent’s application and dismissed the application for judicial review for non-compliance with orders of the court.  Written reasons for his Honour’s judgment were issued on 18 May 2005.

16. The applicant filed an application for leave to appeal from his Honour’s judgment on 30 May 2005. 

17. The affidavit filed in support of the application states that the applicant would like to ask for leave to appeal to the Full Court from the judgment of the Federal Magistrate, and that the ‘grounds for review’ are contained in the attached draft notice of appeal.  The draft notice of appeal contains the following grounds:

    ‘(1)The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.

    (2)The decision involves errors of law.’

    Neither ground is particularised in any way that relates it to the circumstances of the applicant.

18. Having carefully reviewed the decision of the Tribunal and the judgment of the Federal Magistrate, I am not satisfied that his Honour’s judgment is attended by sufficient doubt to warrant its reconsideration on appeal.  Moreover, the applicant has not identified any error, whether of jurisdiction or otherwise, that affects the decision of the Tribunal.

19. The application for leave to appeal is dismissed.  The applicant is to pay the respondent’s costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            1 July 2005

The Applicant appeared in person
Advocate for the Respondent:	D Sim
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 June 2005
Date of Judgment:	21 June 2005