SZJCJ v Minister for Immigration and Citizenship

[2007] FCA 376

FEDERAL COURT OF AUSTRALIA

SZJCJ v Minister for Immigration and Citizenship [2007] FCA 376

SZJCJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2290 OF 2006

LINDGREN J
6 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2290 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJCJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	6 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

2.The application be dismissed.

3.The applicant pay the first respondent's costs of the proceeding.

4.The amount of the costs referred to in order 3 be fixed at $1000.

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 2290 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJCJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	6 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from a judgment of the Federal Magistrates Court of Australia given on 31 October 2006. That Court dismissed, under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth), the applicant's application for review of a decision of the Refugee Review Tribunal dated 31 May 2006, handed down on 22 June 2006. By that decision which the Tribunal affirmed a decision of a delegate of the first respondent (respectively ‘the Delegate’ and ‘the Minister’) refusing to grant a protection visa to the applicant.

2. On the present application, the second respondent has filed a submitting appearance.

3. The applicant arrived in Australia on 28 November 2005 and applied for the protection visa on 6 January 2006.  There was attached to his application for the visa a short statement and a very similar short statement was later attached to his application to the Tribunal for review of the Delegate's decision.  Briefly, according to the statement, upon graduating from high school in 1985, the applicant ran a small business in Seoul, Korea.  In terms of the Convention Relating to the Status of Refugees, he claimed to have a well founded fear of persecution on grounds of political opinion.  He said in the statement that his parents were human rights advocates and that he had always supported them. 

4. He said that although Korea is a democratic country, Korean people did not have a right to demonstrate against the government.  A particular event to which he referred was a demonstration that occurred in December 1998, when several hundred South Korean human rights advocates held a march in central Seoul, to mark the 50th anniversary of the passing of the National Security Law.  He said that his parents and he participated and that about 400 people were arrested under ‘the national security law for the following year’.  He said in his statement that he escaped but his parents were arrested and imprisoned.

5. He asserted that since that demonstration of December 1998, he has participated in demonstrations many times.  He said that he heard from his friends that the police were collecting information about him and he came to appreciate that the police were preparing to prosecute him.  Accordingly, he came to Australia to avoid prosecution and the risk of being imprisoned in Korea.

6. Both versions of his statement conclude with a statement to the effect that the applicant did not wish to go back to his Korea and that there was no reason for him to do so.

7. The applicant applied to the Tribunal on 10 April 2006 for review of the Delegate's decision.  He was notified that the Tribunal would conduct a hearing on 29 May 2006, but he did not attend.  The letter invited him to attend to give oral evidence and to present argument, and informed him that if he did not attend and a postponement was not granted, the Tribunal might make a decision on his case without further notice to him. 

8. Pursuant to s 426A of the Migration Act 1958 (Cth), the Tribunal decided to make a decision on the review without taking further action to enable the applicant to appear before it. The Tribunal outlined the nature of the applicant's claims as I have done above. It found the applicant to be a citizen of the Republic of Korea, and assessed his claims against that country.

1. The Tribunal noted that the applicant had not claimed that he himself had ever suffered harm amounting to persecution for a Convention reason, and had offered no support for his assertion that the police intended to prosecute him.  The Tribunal also noted that he had not specified the reason for which they wished to prosecute him.  The Tribunal noted that on the material before it, it was unable to establish the facts of the matter and to assess whether they were relevant to any claim for refugee status.

2. Not being satisfied that the applicant had a well founded fear of persecution for a Convention reason, the Tribunal affirmed the Delegate's decision.

3. The applicant filed his application in the Federal Magistrates Court on 25 July 2006.  The grounds of his application were stated to be as follows:

   ‘1.The Tribunal did not consider my application in my favor.

   2. I face a risk of being prosecuted if I go back to Korea.

   3. The decision made by the Tribunal is biased.’

4. An amended application was filed in the Federal Magistrates Court on 12 October 2006.  This had annexed to it a document purporting to state ‘grounds of application’.  In substance, it was a copy of the statement to which I have earlier referred.

5. As noted at the outset, on 31 October 2006, the Court dismissed the application for review under rule 44.12 on the ground that the application did not raise an arguable case for the relief claimed. Smith FM reviewed the history of the matter and noted that the amended application consisted essentially of a repetition of the statement that the applicant had previously submitted to the Department and the Tribunal. Not being able to see any arguable jurisdictional error in the Tribunal's reasoning, his Honour considered it appropriate to dismiss the application under rule 44.12(1)(a).

6. The applicant needs leave to appeal to this Court as the judgment given by the Federal Magistrate was interlocutory: see Federal Magistrates Court Rules 2001 (Cth) rr 44.12(1)(a) and 44.12(2) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In support of his application to this Court for leave to appeal, the applicant filed an affidavit made by him on 21 November 2006 declaring and affirming:

   ‘1.   All my claim in my application is true and correct.

   2.There is a breach of the rules of natural justice occurred in connection with the making of the decision.

   3.The decision made by the Refugee Review Tribunal involved an error of law.

   4.The Tribunal should reconsider my application according to law.’

   Annexed to the affidavit was a draft notice of appeal setting out the following grounds of appeal:

   ‘1.I was denied fairness in connection with the making of the decision. 

   2.The Refugee Review Tribunal does not consider, or fully consider, that I would be placed in danger if I return to Korea.

   3.The Tribunal, therefore, was contrary to law in making of the decision.’

7. The applicant has been unrepresented on the hearing today.  I asked him if he wished to say anything at all in support of his application, and he said that he did not.

8. In the circumstances, no purpose would be served by the granting of leave to appeal because it is not shown that there is any substance in the proposed grounds of appeal, and an appeal would be doomed to fail.  The Court will not grant leave to pursue an appeal that can be seen to be futile.  The application for leave to appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        16 March 2007

The applicant appeared in person.
Solicitor for the Respondent:	Ms D Watson, Australian Government Solicitor
Date of Hearing:	6 March 2007
Date of Judgment:	6 March 2007