SZIPN v Minister for Immigration & Citizenship

[2007] FCA 293

FEDERAL COURT OF AUSTRALIA

SZIPN v Minister for Immigration & Citizenship [2007] FCA  293

MIGRATION – consideration of an application for leave to appeal from a decision of a Federal Magistrate refusing an application to reinstate an application for judicial review

Decision

Application dismissed with costs.

Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth)

Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 - cited
Ogawa v University of Melbourne (No. 2) (2004) FCA 1275 - cited
Hall v Nominal Defendant (1966) 117 CLR 423 - cited

SZIPN v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD2467 of 2006

GREENWOOD J
2 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD2467 OF 2006

BETWEEN:	SZIPN Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
AND	REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The title of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The application for leave to appeal from the decision of Federal Magistrate Scarlett of 27 November 2006 is dismissed with costs.

3.The notice of appeal filed by the appellants on 18 December 2006 is struck out. 

4.The quantum of the costs payable by the applicant/appellants to the first respondent pursuant to Order 2 is fixed in the sum of $650.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD2467 of 2006

BETWEEN:	SZIPN Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
AND	REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE:	2 MARCH 2007
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Now I have before me what is, in effect, an application for leave to appeal from a decision of Federal Magistrate Scarlett, delivered on 27 November 2006.  I say that the application is one, in effect, for leave to appeal because the appellants have filed on 18 December 2006, a notice of appeal from the orders and judgment of Federal Magistrate Scarlett.  However, the decision of Federal Magistrate Scarlett is an interlocutory decision and accordingly leave is required to appeal.  I propose to treat the notice of appeal as, in effect, an application for leave to appeal. 

2. The ground recited in the notice of appeal is this:

   ‘The Tribunal failed to comply with its obligations pursuant to the Migration Act 1958 and denied the applicant procedural fairness.

   Particulars. 

   In the Tribunal's decision the Tribunal explained that the delegate considered external information indicating that the Shouters Church is regarded as a "cult" by the PRC authorities and is targeted as an anti-government group.  Its members have been subjected to arrest and imprisonment.  However, the delegate refused the applicant is not the person of adverse interest to the PRC authorities otherwise the applicant would not be able to obtain a passport and depart the country.’

3. The background events briefly are these. 

4. The female appellant applied for a protection visa, Class XA, which was received by the Department on 1 November 2005 (see appeal book before the Federal Magistrate's Court at pages 1 to 26).  An application was also made, received on the same date, on behalf of the second appellant on the footing of an application of a family member.  On 16 November 2005, the Minister's delegate made a decision refusing the application on behalf of both applicants.  On 15 December 2005, the applicants filed an application for review before the Refugee Review Tribunal.  On 3 January 2006, the Tribunal wrote to the appellants, advising that a hearing would take place on Wednesday, 8 February 2006 and thus an opportunity was provided to the appellants and particularly the female applicant/appellant, to demonstrate before the Tribunal that she held a well-founded fear of persecution for a Convention reason. 

5. A hearing took place on that date and the female appellant was present for the hearing, accompanied by the male appellant.  At the hearing the appellants were assisted by an interpreter, who spoke the particular dialect of the appellants and was able to assist the appellants in understanding the content of the questions being put to them.  On 15 February 2006, the Tribunal reached a decision in relation to the conduct of the review and on 7 March 2006 the Tribunal handed down its decision in the review application.  The applicants filed an application for review of the decision of the Tribunal on 3 April 2006.  That application was first mentioned before Lloyd-Jones FM on 2 May 2006 and then adjourned until 31 August 2006 for directions.  The matter was further adjourned on 14 December 2006.  Arrangements were made to transfer the particular matter to the docket of Federal Magistrate Scarlett and on 12 September 2006, the Federal Magistrate's Court wrote to the applicant at her address, advising her that the matter would be listed for directions before Federal Magistrate Scarlett on Monday, 25 September 2006. 

6. The applicant did not appear on that date.  Accordingly, as there was no appearance by or on behalf of the applicants, Scarlett FM dismissed the application for non-appearance under the provisions of rule 13.03A(c) of the Federal Magistrate's Court rules.  The applicant then filed a notice of motion on 16 October 2006 seeking to set aside the judgment made on 25 September 2006 made in her absence.  That notice of motion was listed before Scarlett FM at 11.30 am on 23 October 2006.  The applicant did not appear when the matter was listed or called at 11.30 am.  Scarlett FM held the matter in the list and called the matter again at 12 noon.  There was no appearance by or on behalf of the applicant.  The notice of motion was dismissed for non-appearance, again under the provisions of the rules of the Federal Magistrate's Court.

7. The applicant then filed a notice of motion on 10 November 2006, seeking to set aside the orders of Scarlett FM of 23 October 2006.  The applicant filed an affidavit in support of that application, contending that the applicant could not find the court on the hearing date on 23 October 2006.  The application to set aside the orders of 23 October 2006 was listed for hearing on the morning of Monday, 20 November 2006.  The applicant did appear on that occasion.  The applicant was unrepresented but assisted by an interpreter, who was not able to translate in the particular dialect of the applicants and thus the application was adjourned until 11 am on Friday, 24 November so that an interpreter with the relevant skills could be available. 

8. The applicant attended the court on 24 November 2006 and gave evidence with the assistance of the interpreter. On 27 November 2006, Scarlett FM refused to reinstate the applicants’ application for judicial review. His Honour found that the applicants did not have a valid excuse for not attending the court on the two prior occasions and that it would be futile to reinstate the application as it had no reasonable prospects of success. From that decision, the applicants filed their notice of appeal. As I have indicated, it is clear from the consideration of ss 24(1)(d) of the Federal Court of Australia Act 1976 and ss 24(1A) and 25(2)(a) that leave is required to appeal from the decision of Scarlett FM. I also note the operation of order 52 of the Federal Court Rules and particularly, of course, order 52, rule 5 which governs appeals from interlocutory judgments other than interlocutory judgments of the Federal Court.

9. It is also well established and clear that in making an application for leave to appeal from such a judgment, the applicants must establish that the decision of Scarlett FM is ‘attended by sufficient doubt to warrant its being reconsidered by the Full Court.’ and must also demonstrate that ‘substantial injustice’ would result if leave were refused, supposing the decision to be wrong.  The orthodoxy of those principles is established in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (‘Décor v Dart’) and is confirmed in Ogawa v University of Melbourne (No. 2) (2004) FCA 1275. Of course, those principles are consistent with well established principles derived from Hall v Nominal Defendant (1966) 117 CLR 423 and also other authorities of the Federal Court of Australia. In examining the decision of Scarlett FM and the analytical exposed reasons published by his Honour in support of the orders, it is clear that his Honour turned his mind in considerable detail to the chronology of events, the principles to be applied in considering the application before him and the underlying merits of the contentions advanced by the appellant in relation to the proceedings before the Tribunal and the contended jurisdictional error on the part of the Tribunal.

10. His Honour looked at the circumstances that led the appellants to miss the hearing and considered the merits of the substantive application.  His Honour observed that he would turn his mind to the issue of where there are no prospects of success in the substantive application, reinstatement would be futile and then weighed those considerations in the balance in making the order in question.  The application for leave to appeal is not supported by a proper application nor any affidavit material in support of the application which would go to establishing the two essential matters prescribed by Decor v Dart.  The only material before the court on the question is the contention recited in the proposed notice of appeal.  In supporting the merits, if I can put it that way, of an argument of error of law on the part of Scarlett FM, the female appellant contended that before the Refugee Review Tribunal she could not understand what the Tribunal was talking about or perhaps understand more broadly the proceedings. 

11. The appellant also says that she believes she would suffer persecution should she return to the People’s Republic of China.  Neither of these matters constitute demonstrated error on the part of Scarlett FM and accordingly there is no basis for concluding that his Honour's decision should be reconsidered by the Full Court.  Moreover, having regard to his Honour's exposed set of reasons, there is no basis for concluding that substantial injustice would arise should leave not be given.  The second limb, in any event, of course, is predicated upon the applicant/proposed appellants, demonstrating that the first limb is made out.  Accordingly, the application must necessarily be dismissed and the notice of appeal must necessarily be dismissed. 

12. In addition to a consideration of the substance of the application this morning, an application has been made for a direction that the title of the first respondent be changed to "Minister for Immigration and Citizenship" and I make that direction.  I make an order that leave to appeal from the decision of Scarlett FM should be refused.  I make an order striking out the notice of appeal filed on 18 December 2006 and I make a further order that the appellants pay the first respondent's costs of and incidental to the application.

13. I further order that the quantum of the costs payable by the applicant/appellants to the first respondent be fixed in the sum of $650.00.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        2 March 2007

Solicitor for the Appellant	Appellant – Self Represented
Solicitor for the First Respondent:	Clayton Utz Lawyers
Date of Hearing:	2 March 2007
Date of Judgment:	2 March 2007