SZICB v Minister for Immigration and Citizenship

[2007] FCA 1214

FEDERAL COURT OF AUSTRALIA

SZICB v Minister for Immigration and Citizenship [2007] FCA 1214

SZICB v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 922 OF 2007

MANSFIELD J
6 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 922 OF 2007

BETWEEN:	SZICB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	6 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay to the first respondent his costs of the application.

3.Costs of the first respondent be fixed at $2,000.

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 922 OF 2007

BETWEEN:	SZICB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	MANSFIELD J
DATE:	6 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from the orders of a Federal Magistrate made on 10 May 2007.  The Federal Magistrate dismissed an application to set aside a decision of the Refugee Review Tribunal (the Tribunal) handed down on 21 December 2006, affirming a decision of a delegate of the first respondent of 18 February 2005 that the applicant was not entitled to a protection visa under the Migration Act 1958 (Cth) (the Act) for which he had applied shortly after his arrival on 18 January 2005. The applicant has been notified of today’s hearing by the Court by letter of 21 June 2007, by the solicitors for the first respondent by letter of 29 June 2007 sent in accordance with the Court directions made on 29 May 2007, and by further letter of 1 August 2007 from the solicitors for the first respondent enclosing counsel’s written submissions. Each of the letters was addressed to the applicant’s address for service as it appears on his application.

2. He has been called and has not appeared.  In those circumstances, I am satisfied that he does not apparently intend to prosecute his application.  Accordingly, the application should be dismissed.  I should add that I do so, not simply for his non-attendance and the apparent indication from his non-attendance that he does not wish to prosecute the application but also having regard to the reasons for decision of the Tribunal and the Federal Magistrate and to the helpful outline of submissions of counsel for the first respondent.  It seems to me to be clear enough that the reason that the application was unsuccessful was because the Tribunal did not accept the applicant’s evidence that he was a Falun Gong practitioner and therefore may have been vulnerable to persecution were he to return to his country of citizenship, the People’s Republic of China.

3. As the Federal Magistrate indicated, that decision rejecting the applicant as a witness of reliability on those matters was available to it on the material to which the Federal Magistrate referred.  I have also had regard to the identified grounds of error albeit expressed in very general terms in the applicant’s documents before this Court.  There is no reason emerging from the material before me to indicate that any of them has any substance or any prospect of success.  Accordingly, I dismiss the application.  The applicant should pay to the first respondent his costs of the application.

4. The first respondent has sought an order that the costs so payable be fixed in the sum of $2,000.  Whilst I am generally cautious about fixing a figure for a lump sum order for costs in circumstances such as the present and without some analysis of the work involved, having regard to the nature of this matter, the extent of its preparation, including the written submissions and the engagement of counsel, I am satisfied that the figure sought is an appropriate one.  I accordingly fix the first respondent’s costs in the sum of $2,000.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        9 August 2007

Counsel for the Applicant:	The applicant did not appear
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	6 August 2007
Date of Judgment:	6 August 2007