SZIBA v Minister for Immigration and Multicultural Affairs

[2006] FCA 1468

FEDERAL COURT OF AUSTRALIA

SZIBA v Minister for Immigration & Multicultural Affairs [2006] FCA 1468

SZIBA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD1276 OF 2006

EMMETT J
1 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1276 OF 2006

BETWEEN:

SZIBA
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	1 NOVEMBER 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 of 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	NSD1276 OF 2006

BETWEEN:

SZIBA
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	1 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China.  He arrived in Australia on 24 April 2005.  On 16 May 2005, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 15 August 2005 a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa. The applicant then applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 9 November 2005, the Tribunal affirmed the delegate’s decision not to grant a protection visa. The applicant was notified of that decision on 1 December 2005.

2. In its reasons for that decision, the Tribunal recorded that, on 13 October 2005, it wrote to the applicant at the address given by him as his mailing address.  By that letter, the Tribunal informed the applicant 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 applicant was invited to give oral evidence and present arguments at a hearing before the Tribunal on 9 November 2005.  The applicant did not appear before the Tribunal on that day and the Tribunal then proceeded to make its decision on the basis of the papers before it.

3. The applicant claimed that he left China and feared to return there because he was persecuted in China for his Falun Gong activities and would face further persecution if he returned.  While the Tribunal accepted there is sometimes persecution of Falun Gong practitioners in China, including persecution in relation to practice at home, the Tribunal was not satisfied that the applicant was a Falun Gong practitioner.  On the basis of the information before it, the Tribunal could not be satisfied that the applicant’s claims were otherwise than untested assertions lacking in detail in important respects.  The Tribunal considered that there was no persuasive evidence before it that enabled it to be satisfied that there was a real chance that the applicant would face serious harm for a Convention reason.

4. The applicant then commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  At a directions hearing on 7 February 2006, the applicant was given leave to file an amended application and any evidence in support of his application by 26 May 2006.  The matter was listed for hearing on 13 June 2006 to consider whether the material before the Federal Magistrates Court disclosed that the applicant had an arguable case.  While an amended application has been filed, no additional evidence was filed.

5. In the original application, the applicant relied on three grounds as follows:

   ‘1.There was no evidence or other material to justify the making of the decision.

   2.       I am entitled to a protection visa.

   3.       I was sent to jail in China because I practiced Falun Gong.”

6. The amended application asserted that the Tribunal failed to consider that the applicant is a genuine Falun Gong practitioner. The Federal Magistrates Court dismissed the proceeding on 13 June 2006 on the basis that the material before it disclosed no arguable case.  The primary judge observed that the second and third grounds in the original application raised no basis for jurisdictional error that could vitiate the Tribunal’s decision.  His Honour considered the material that was before the Tribunal and concluded that the Tribunal’s decision was unarguably open to it on the material before it. The primary judge also considered the amended application. Once again, as his Honour observed, no arguable ground of jurisdictional error was raised by that assertion. 

7. The primary judge also recorded that, at the hearing on 13 June 2006, the applicant asserted that he had not responded to the Tribunal’s invitation to attend a hearing because he did not receive the Tribunal’s letter. There was no evidence adduced by the applicant as to that matter. However, as his Honour observed, even if that were so, there was no basis for doubting that the Tribunal had complied with its obligations to give notice. The Tribunal’s power, under s 426A of the Act, to proceed to make a decision on the papers, is available even where an applicant does not in fact receive notice of an invitation to a hearing.

8. On 3 July 2006, the applicant filed an application for leave to appeal to this Court from the orders of the Federal Magistrates Court of 13 June 2006. Leave would be required if those orders were interlocutory by reason of the operation of s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth). Whether a judgment is final or interlocutory is a question productive of great difficulty. Generally, the test to be applied is whether the judgment or order as made finally disposes of the rights of the parties.

9. The orders made on 13 June 2006 were made under Part 44 of the Federal Magistrates Court Rules 2001. Those rules provide for summary dismissal of a proceeding where no arguable case is disclosed. Ordinarily, such a dismissal would be interlocutory, in the sense that it would not preclude an applicant from commencing a further proceeding. Such a decision would not finally resolve the question of whether or not there should be an order quashing the decision of the Tribunal.

10. However, by the time the orders were made, the time bar contained in the Act had run its course. In one sense, therefore, the dismissal finally disposed of all opportunity of the applicant to seek judicial review of the Tribunal’s decision, at least in the Federal Magistrates Court.

11. The proposed grounds of appeal in the draft notice of appeal are as follows:

    ‘(1)There was no evidence or the other materials to justify the making of the decision.

    (2)     The Tribunal failed to give procedural fairness.

    (3)I was sent to jail when I was in China because I practiced Falun Gong.’

    No particulars are given.  The grounds, of course, do not purport to identify errors on the part of the Federal Magistrates Court.  If leave was necessary, and were granted, the appeal must fail.  Accordingly, I propose to refuse leave to appeal. 

12. If it be the fact that the orders of 16 June 2006 are properly to be treated as final orders, it would be necessary for an application for an extension of time for a notice of appeal to be filed.  Since any appeal is doomed to failure on the grounds foreshadowed, any such extension would be refused. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        8 November 2006

The Appellant appeared in person
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	1 November 2006
Date of Judgment:	1 November 2006