SZFSL v Minister for Immigration and Citizenship

[2007] FCA 642

FEDERAL COURT OF AUSTRALIA

SZFSL v Minister for Immigration and Citizenship [2007] FCA 642

SZFSL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 102 OF 2007

BESANKO J
4 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 102 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFSL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	4 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs of the application fixed in the sum of $500.

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 102 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFSL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	4 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from orders made by a Federal Magistrate. The Magistrate made an order under r 44.12 of the Federal Magistrates Court Rules 2001 (Cth) dismissing the applicant’s application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant a protection visa to the applicant.

2. When the application for leave to appeal was called on for hearing, the applicant did not appear. The first respondent tendered an affidavit which exhibited correspondence which had passed between the applicant and the first respondent’s solicitors. On 18 April 2007 the applicant wrote to the first respondent’s solicitors in the following terms:

   “I refer to the above matter to be heard on 1 May 2007. I would like to withdraw the application for appeal. Please contact me to discuss the procedures to discontinue the case.”

3. The first respondent’s solicitors wrote to the applicant on the same day and advised her that her application could be finalised by the filing of a notice of discontinuance or by the making of consent orders. The first respondent’s solicitors enclosed a draft consent order and asked the applicant to sign it. The applicant was advised by the first respondent’s solicitors that her application was presently listed for hearing on 1 May 2007 at not before 2.15 pm at the Law Courts Building, Queens Square, Sydney. The first respondent’s solicitors sent their letter to the applicant by express post.

4. I note from the Court file that by letter dated 29 March 2007 the National Appeals Registrar of this Court advised the applicant and the first respondent that the application would be heard on 1 May 2007 at not before 2.15 pm at Law Courts Building, Queens Square, Sydney.

5. The first respondent asked me to exercise the power in s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) to order that the application be dismissed for the failure of the applicant to attend a hearing relating to the application. He refers to the fact that she was aware of the date and time for the hearing and she has not attended the hearing. He also asks me to note that the applicant has indicated that she does not wish to proceed with the hearing of the application. There are grounds to make an order under s 25(2B)(bb)(ii) if the power in that paragraph may be exercised not only in relation to an appeal but also in relation to an application for leave to appeal. It seems that Cowdroy J in Li v Minister for Immigration and Multicultural Affairs [2006] FCA 467 considered that it did. It would be surprising if the Court had the power to dismiss an appeal for want of attendance at a hearing, but not an application for leave to appeal. However, the words of the relevant paragraph are clear and refer only to an appeal, and other parts of the section refer to an application for leave to appeal.

6. In my opinion, the words of s 25(2B)(bb)(ii) are clear and the power in that paragraph may only be exercised where there is a failure of an appellant to attend a hearing related to an appeal and that does not include an application for leave to appeal.

7. In those circumstances I invited the first respondent to make submissions on the merits of the application. I think I am entitled to proceed to hear the application of which I am satisfied the applicant has notice and is aware. The draft notice of appeal sets out the following proposed grounds of appeal:

   “(a)I’m a [sic] asylum seeker from PR China. I’m Falun Gong practitioner. I’m detained for short period in 1999 and was fired from my job and assked [sic] to write report ‘wash brain’. I was involved in the practise of Falun Gong.

   (b)In January 2000 I went to Beijing to parade with some other practitioners and was detained for about a hundred days.

   (c) I would be jailed if I return to my original country.

   (d)It is not reasonable for the Tribunal to put it that I attained a visa in order to escape persecution in PR China.

   (e)The decision made by the Tribunal is illogical.

   (f)The Tribunal’s decision; ‘I was not ever a Falun Gong practitioner while the Tribunal accepts that I gave correct answers to some questions about Falun Gong which the Tribunal put to me.

   (g)There is no other information or evidence before the Tribunal in making of the decision that I was ever detained for short period in China.”

8. The Magistrate concluded that there was no arguable jurisdictional error affecting the Tribunal’s decision and that the applicant’s amended application seeks to advance the merits of her refugee claims. He said that he could not find an argument of substance in the amended application. I have read the reasons of the Tribunal and the documents lodged by the applicant in support of its application for leave to appeal. I am satisfied that the decision of the Magistrate is not attended with sufficient doubt to warrant a grant of leave.

   Conclusion

9. The application for leave to appeal is dismissed. The applicant must pay the first respondent’s costs fixed in the sum of $500.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        4 May 2007

The Applicant did not appear
Counsel for the Respondent:	Mr B Cramer
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 May 2007
Date of Judgment:	4 May 2007