SZECM v Minister for Immigation and Multicultural &

[2005] FCA 169

FEDERAL COURT OF AUSTRALIA

SZECM v Minister for Immigation & Multicultural &
Indigenous Affairs [2005] FCA 169

SZECM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1984 of 2004

LINDGREN J
2 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1984 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZECM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	2 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent's costs of the appeal.

3.That for the purposes of order 2, instead of taxed costs, the respondent be entitled to the sum of $600.

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	1984 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZECM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN
DATE:	2 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals against a decision of the Federal Magistrates Court of Australia (‘FMCA’) given on 10 December 2004, by which the Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal given on 2 June 2004 and handed down on 24 June 2002. 

2. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’) the Chief Justice determined that it is appropriate that the appellate jurisdiction of the Court in relation to the appeal be exercised by a single Judge.

3. The form of notice of appeal by which the appellant commenced this proceeding, was filed on 20 December 2004.  It stated as the grounds of appeal only that the appellant was a Falun Gong practitioner and would be gaoled if he returned to China because he believed in Falun Dafa, and had been gaoled by Chinese authorities.

4. On the first directions hearing, on 9 February 2005, I ordered the appellant to file and serve an amended notice of appeal by yesterday, 1 March 2005 stating, with particulars, proper grounds of appeal, and I stood over the appeal to today for further directions, noting that it was my intention to dismiss the appeal today if the appellant had not complied with the order. 

5. Yesterday the appellant filed a document headed ‘Amended Application’.  That document stated that there was no evidence or other materials to justify the making of the decision (apparently of the FMCA).  Then the document continued as follows:

   ‘I am a Falun Gong (Falun Dafa) practitioner.  Falun Dafa incorporates Buddhist and Taoist principles, and combines them with exercise and body cultivation.  However, the  group was outlawed on 22 July 1999.  In May 2001, I was jailed in the second labour camp in Tianjin city for six months only because I distributed truth clarifying materials about Falun Gong.  In prison, I still defend my fundamental rights they risk their lives.  On many occasions, I appealed to prison authorities and other government offices both verbally and in writing.  I still practice the Falun Gong exercises and mediation and study the Falun Dafa teachings in the book Zhuan Falun, I refuse to wear prison uniforms, to number off, and to squat down (a torture method) as a means to demonstrate that I am innocent and that I am not criminals.  I received severe punishment from the prison authorities for these actions.  As a result I was viciously beaten, handcuffed, and put into solitary confinement.  I was cuffed there with my four limbs stretched out from morning to night.  I was released in November 2001, after I wrote a letter to the authority to declare that I would get rid of Falun Gong.  It was all done under the threats of terror, violence and torture.’

   Clearly, the appellant has not complied with the direction of 9 February 2005.

6. Section 25(2B)(bb) of the FCA Act provides that in the appellate jurisdiction, a single Judge (or a Full Court) may order that an appeal to the Court be dismissed for failure to comply with a direction of the Court.

7. I have a discretion to dismiss the appeal.  Relevant to the exercise of that discretion, are the facts that:

   ·    having read the reasons for decision of the Tribunal and of the Federal Magistrate, I see no obvious ground of appeal; and

   ·    the appellant did not appear before the Tribunal and in his appearance in the FMCA, he simply invited his Honour to engage in a merits review.

   
   

8. In the exercise of my discretion, I will dismiss the appeal with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             3 March 2005

The appellant appeared in person
Solicitor for the Respondent:	Ms K Crawley of Clayton Utz
Date of Hearing:	2 March 2005
Date of Judgment:	2 March 2005