SZGYH v Minister for Immigration and Multicultural Affairs

[2006] FCA 1128

FEDERAL COURT OF AUSTRALIA

SZGYH v Minister for Immigration and Multicultural Affairs FCA [2006] 1128

SZGYH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1144 OF 2006

BESANKO J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1144 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGYH
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	8 AUGUST 2006
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, fixed in the sum of $1,000.

3.The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.

4.Insofar as may be necessary, the Refugee Review Tribunal be added as a respondent to the application.

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 1144 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGYH
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of a Federal Magistrate. The applicant has not appeared on the application. The applicant seeks to have set aside an order made by a Federal Magistrate on 24 May 2006. On that date the applicant’s application was dismissed pursuant to Rule 10.01 of the Federal Magistrates Court Rules 2001.

2. The history of this matter is that the applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 2 October 2004.  On 12 October 2004, he lodged an application for a protection class XA visa with the Department of Immigration and Multicultural and Indigenous Affairs, under the Migration Act 1958 (Cth). On 17 February 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and, on 23 March 2005, the applicant applied to the Refugee Review Tribunal for review of that decision.

3. On 17 May 2005 the Tribunal wrote to the applicant, advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 10 June 2005.  On 8 June 2005 the applicant advised the Tribunal that he wished to give oral evidence.

4. However, the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend.  In those circumstances, and pursuant to s 426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.  The Tribunal decided to affirm the decision of the delegate not to grant a protection visa to the applicant.  In the course of its reasons it said:

   ‘However, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention for these reasons: this is because the Tribunal finds the applicant’s claims very general and lacking in useful detail.  For example, he made a brief and general assertion about Falun Gong but there is no useful information about his past or recent Falun Gong practice or Falun Gong activities. 

   Also he claimed to have participated in a protest in July 2003 but there is little useful information about this protest or about his participation in it and no useful detail about his dealings with the police about the matter or about the penalty he claimed was imposed or about the compensation for the family’s land.

   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.’

5. On 8 August 2005 the applicant made an application under the Judiciary Act 1903 (Cth) and the Migration Act to have the decision of the Tribunal quashed. An amended application was filed on 20 October 2005. The application came before a Federal Magistrate on 15 December 2005 and, at that time, the Magistrate vacated a hearing date on 30 January 2007 and listed the matter for final hearing on 4 May 2006. The applicant did not attend court on that occasion and in the circumstances outlined in the Magistrate’s reasons dated 11 May 2006, he decided to dismiss the application. The formal order made by the Magistrate was as follows:

   ‘The application is dismissed under the provision of rule 13.03A(c) of the Federal Magistrates Court Rules 2001 due to the non-attendance of the applicant.’

6. On 4 May 2006, the applicant issued a notice of motion supported by affidavit seeking an order that the order made on 4 May 2006 in the absence of the applicant be set aside.  In his affidavit the applicant states:

   ‘On 4 May 2006 I did not appear at the Federal Magistrates Court for the hearing.  At the beginning my hearing was scheduled to be held at 2.15 on 30 January 2007.  The hearing was later changed to 10.15 on 4 May 2006 but I mistakenly thought that the hearing would be held at 2.15 on 4 May 2006;

   I received a call from the court this morning and I realised that I got the hearing time wrong.  I was advised by the respondent through the interpreter that I could ask for a new hearing; I wish to be given a further hearing opportunity so that I can present my case.’

7. The notice of motion was listed for hearing before a Magistrate on 24 May 2006.  The applicant did not attend on that occasion and, as I have said, his application was dismissed due to his non-appearance.  The application for leave to appeal is dated 14 June 2006.  It is supported by an affidavit and a draft notice of appeal.  In the affidavit the applicant states:

   ‘I was given an opportunity to appear at the Federal Magistrates Court on 24 May 2006.  I was late for the hearing and my application was dismissed.  The reason that I was late for the hearing was that the Magistrates Court mistakenly directed me to attend hearing at Law Court Building while it was actually at John Maddison Tower.  I went to the Law Court Building and then rushed to John Maddison Tower but a decision has already been made when I got there.’

8. The first respondent tendered a letter from the Federal Magistrates Court dated 15 May 2006 to the applicant advising him of the interlocutory hearing to take place on 24 May 2006 and the fact that the hearing would take place at the John Maddison Tower, level 7, 88 Goulburn Street, Sydney. 

9. As far as the hearing today is concerned, I am satisfied that the applicant was given notice of the hearing by the Court on 5 July 2006.  In addition, the first respondent has tendered a letter from her solicitors to the applicant dated 4 August 2006 enclosing the respondent’s outline of submissions and advising of the time and place of the hearing before me.

10. The test on an application for leave to appeal is well-known: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 to 400. I do not think that it is arguable that the Magistrate erred in dismissing the applicant’s application by notice of motion dated 4 May 2006. Furthermore, I accept the submission made by the first respondent that no substantial injustice will result from a refusal of leave to appeal because there is no jurisdictional error in the Tribunal’s decision. The draft notice of appeal appears to misconceive the basis upon which the Tribunal made its decision. I have already referred to the Tribunal’s reasoning.

11. In the circumstances, it is appropriate to refuse leave to appeal and I so order.  I should add that because of some uncertainty as to whether I could simply dismiss the application for leave to appeal on the basis of the applicant’s non-attendance, I have decided to deal with the merits of the application.  The orders of the court are:

    1.        The application for leave to appeal is dismissed;

    2.        The applicant is to pay the first respondent’s costs fixed in the sum of $1,000.

    3.The name of the first respondent is to be amended to read Minister for Immigration and Multicultural Affairs.

    4.Insofar as may be necessary, the Refugee Review Tribunal is added as a respondent to the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Dated:        9 October 2006

The Applicant:	The Applicant did not appear.
Counsel for the Respondent:	B Cramer
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006