SZHCS v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1135

FEDERAL COURT OF AUSTRALIA

SZHCS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1135

Migration Act 1958 (Cth) s 441A(4) and s 441C(2)
Migration Regulations 1994 (Cth)

SZHCS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 774 OF 2006

TAMBERLIN J
7 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 774 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHCS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	7 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed with costs.

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 774 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHCS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE:	7 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from the judgment of Federal Magistrate Smith given on 21 March 2006. The decision of the Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”), which had in turn affirmed the decision of the Minister’s delegate not to grant a protection visa.  When the matter came on for hearing before me this afternoon, the applicant raised two matters, neither which relate to the merits of his application.

2. Firstly, the appellant referred to not having received a letter from the Tribunal informing him as to the date of the hearing on 16 August 2005. A copy of this letter dated 15 July 2006 is before me, and noted on it there is a reference to what appears to be a Registered Post number. This issue was also considered by Federal Magistrate Smith, who was satisfied from the Tribunal's record of posting that the letter had been lodged with the Post Office on 18 July 2005 within the period allowed for posting under s 441A(4) the Migration Act 1958 (Cth) (“the Act”). In accordance with s 441C(2) of the Act, the letter was therefore deemed to have been received by the applicant seven working days after the date of the letter. His Honour was satisfied that the letter allowed the applicant the period of notice of the hearing required under the Migration Regulations 1994 (Cth).  This matter has been dealt with by the learned Magistrate, and I have been pointed to no error or mistake in relation to it. 

3. The second matter mentioned by the applicant was related to a general plea for an adjournment on the basis that he would like to have further time to consult a solicitor.  I note that the application for an extension of time was filed on 26 April 2006, a period of approximately two and a half months ago.  In these circumstances, I am satisfied that the applicant has had sufficient time within which to obtain legal assistance.  I have considered the reasons of the Tribunal and can see no error on the face of those reasons.

4. The Tribunal was satisfied that the applicant is a citizen of the People's Republic of China. However, because the applicant did not attend the Tribunal hearing, the Tribunal was left with several claims that were untested and expressed in general terms.  In particular, the Tribunal noted that the applicant did not explain how he was able to arrange his departure from China considering that he claimed to have a high political profile and said he was included on a “blacklist.” 

5. Most importantly, the Tribunal did not have an opportunity to test the applicant’s evidence, seek further information from him or raise with him the perceived problems with the evidence.  The applicant was aware that the Tribunal was not satisfied on the documents as to the merits of his claim, and this is an important consideration in giving weight to the fact that he did not appear.  The Tribunal was not satisfied that the applicant would face persecution due to his Falun Gong beliefs if returned to China and this is a question of fact for the Tribunal to decide on the evidence before it.

6. In all the circumstances, and considering that no error has been shown on the part of the Tribunal or the learned Magistrate, I dismiss this application for an extension of time on the basis that no arguable reason for setting aside the decisions below has been made out and it has no reasonable prospect of success.  The order of the Court is that the application is dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        25 August 2006

Applicant appeared in person.
Counsel for the Respondent:	Mr I Muthalib
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	7 August 2006
Date of Judgment:	7 August 2006