SZIVW v Minister for Immigration & Multicultural Affairs

[2006] FCA 1582

FEDERAL COURT OF AUSTRALIA

SZIVW v Minister for Immigration & Multicultural Affairs [2006] FCA 1582

SZIVW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1624 OF 2006

EDMONDS J
10 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1624 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVW
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	10 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

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 1624 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVW
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	10 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court (Smith FM), delivered on 8 August 2006 (SZIVW v Minister for Immigration & Anor [2006] FMCA 1198).

2. The appellant is a citizen of the Peoples Republic of China and arrived in Australia on 1 December 2005.  On 23 December 2005 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  In his application he claimed, in summary, that his involvement with Falun Gong led the Chinese police to target him.  His wife had called him repeatedly and told him not to return to China as the police were waiting for him.  He did not want to take the risk of returning to China because he would face persecution from the Chinese authorities.

3. On 12 January 2006 a delegate of the first respondent (‘the Minister’) refused to grant the appellant a protection visa.  On 13 February 2006 the appellant applied to the second respondent (‘the Tribunal’) for a review of the delegate’s decision.  Apart from his application form, the appellant provided no further information to the Tribunal.  The Tribunal recounts, at page 4 of its reasons for decision, handed down on 18 April 2006, that the appellant did not take the opportunity to appear at a hearing before the Tribunal.

4. The Tribunal reviewed the material before it and was not satisfied that the appellant is, or has been, a practitioner of Falun Gong, nor was it satisfied that he is, or has been, a person of interest to the police in China.  The Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

5. On 17 May 2006 the appellant applied to the Federal Magistrates Court for an order that the Minister show cause why a remedy should not be granted under s 476 of the Migration Act 1958 (Cth) (‘the Act’) in respect of the Tribunal’s decision. At a directions hearing before the Federal Magistrate on 14 June 2006 the appellant was given leave to file an amended application and he did so on 26 July 2006. The directions which his Honour made also included as order 7:

   ‘The application is listed on 8 August 2006 at 11 am … for a hearing under Rule 14.12 or for further directions.   Note that the application may be dismissed on that occasion if the Court is not satisfied that it has raised an arguable case for the relief claimed.’

6. The amended application contained four grounds:

   ‘1.The Tribunal failed to consider my claims. My case was not considered in accordance with section 91R of the Migration Act.

   2.The Tribunal failed to carry out its statutory duty.  The Tribunal relied upon information contained in the applicant’s application for a protection visa and failed to give the applicant particulars of that information in writing, explain why it was relevant and give the applicant an opportunity to comment upon it.

   3.The Tribunal relied upon irrelevant materials.  The “Country Information” relied upon by the Tribunal was out of date.

   4.The Tribunal did not provide sufficient grounds for refusal of my  application.’

7. On 2 August 2006 the Minister filed written submissions which, in short, set out the reasons why the Minister submitted the Court should conclude that no jurisdictional error was established. The Minister submitted that the application ‘ought to be dismissed with costs pursuant to r 44.12 of the Federal Magistrates Court Rules because it fails to raise an arguable case’.

8. After reviewing the Tribunal’s reasons the Federal Magistrate said (at [13]) that he could see no arguable jurisdictional error arising out of them.  His Honour then addressed each of the grounds upon which the appellant relied.  None of them, his Honour said, raised an arguable case for relief (at [14] – [17]).  His Honour concluded at [18] as follows:

   ‘Taking into account all the material and submissions presented by the applicant, I am not satisfied that the application has raised an arguable case for the relief claimed and I consider it is appropriate for me to dismiss the application under r. 44.12(1)(A).’

9. Rule 44.12 provides, relevantly:

   ‘(1)At a hearing of an application for an order to show cause the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application.

   (b)…

   (2)      To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.’

10. On 24 August 2006 the appellant filed a notice of appeal in this Court when he should have filed an application for leave to appeal.  On 1 November 2005 the Minister’s solicitors filed a document entitled, ‘Objection to Competency’.  The document states that the Minister objects to the jurisdiction of the Court to hear the appeal because the Federal Magistrate’s judgment is interlocutory.

11. This appeal was set down for hearing by Deputy District Registrar Farrell on 21 September 2006.  At 10:15 am today on the calling of the matter, both inside and outside the Court, there was no appearance by or on behalf of the appellant.  I stood the matter down until 11:00 am but at that time there was no appearance by or on behalf of the appellant.

12. In these circumstances, and in the absence of leave being granted to the appellant to appeal against the judgment of Smith FM, that judgment being interlocutory, the appellant’s appeal must be dismissed as incompetent.

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

Associate:

Dated:        22 November 2006

Solicitor for the Appellant:	No appearance by the appellant
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	10 November 2006
Date of Judgment:	10 November 2006