SZKDE v Minister for Immigration and Citizenship

[2007] FCA 1230

FEDERAL COURT OF AUSTRALIA

SZKDE v Minister for Immigration and Citizenship [2007] FCA 1230

SZKDE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 690 OF 2007

BRANSON J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 690 OF 2007

BETWEEN:

SZKDE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	30 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the first respondent fixed in the sum of $1,000.00.

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 690 OF 2007

BETWEEN:

SZKDE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from an interlocutory judgment of the Federal Magistrates Court.  That judgment was pronounced by Emmett FM on 2 April 2007 in the following circumstances.  On 10 June 2006 the applicant applied for a protection visa on the basis that he feared persecution in his country of nationality, the People’s Republic of China, because he was a practitioner of Falun Gong.  His application was rejected by a delegate of the Minister.  The delegate was satisfied that the claims made in support of his application were both incredible and unsubstantiated. 

2. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the decision of the delegate.  He was invited to attend a hearing on 22 November 2006.  By a letter dated 10 November 2006 the applicant sought to have the hearing delayed by one month.  He claimed to have an infected eye and a scratched hand and also to need more time to prepare his case.  His application was refused. 

3. On 21 November 2006 the Tribunal received a medical certificate which certified that the applicant would be unable to work from 21 November 2006 to 7 December 2006 because of “slight eye injury, gastroenteritis”.  The Tribunal rescheduled his hearing to 8 December 2006.  The applicant did not attend the rescheduled hearing.  On 8 January 2007 the Tribunal received a medical certificate dated the same day which certified that the applicant would be unable to work from 8 January to 8 February 2007.  Other details in the certificate are difficult to read but they appear to refer to the applicant’s leg. 

4. On 9 January 2007 the Tribunal handed down a decision affirming the decision to refuse the applicant a protection visa.  The Tribunal noted that the applicant’s claims were brief and lacking in detail, particularly as to his assertion to be of interest to the authorities of the People’s Republic of China.  The Tribunal was not satisfied that the applicant has been or is a practitioner of Falun Gong; nor was it satisfied that he was involved in Falun Gong activities more generally.  It was not satisfied that he was of interest to the Chinese authorities.  The Tribunal was therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returns to the People’s Republic of China.

5. The applicant applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal. The grounds on which the application was made identified no error in the decision of the Tribunal. They simply restated the applicant’s claim to fear persecution as a Falun Gong practitioner. The Minister sought an order dismissing the application for judicial review on the grounds that it did not raise an arguable case for relief. That application was listed for hearing on 1 March 2007. The applicant did not appear when the matter was called for hearing. Emmett FM ordered that the proceedings be dismissed pursuant to r 13.03A of the Federal Magistrates Court Rules 2001 (Cth).

6. On 2 March 2007 the applicant filed an affidavit in the Federal Magistrates Court in which he deposed to living far from that court and having experienced heavy traffic congestion.  On that basis he said that he could not turn up on time to the Federal Magistrates Court.  He sought another date and time for his application to be processed.  On 2 April 2007 the matter again came before Emmett FM.  The applicant was present and was cross-examined.  Her Honour was not satisfied with the applicant’s explanation for not being present when his matter was called for hearing on 1 March 2007; nor was her Honour satisfied that any utility would attend reinstating the applicant’s application for judicial review.  She noted that the applicant had not identified any error affecting the decision of the Tribunal.  Emmett FM refused the applicant’s application to reinstate his application for judicial review. 

7. This afternoon this matter was not called for hearing until approximately three quarters of an hour after his matter was listed to be heard.  That delay occurred because the applicant initially declined to utilise the services of an interpreter provided for him by the Court.  It was not entirely clear, to me at least, whether he objected to the interpreter because of her language skills or because she had previously interpreted for him.  Nonetheless I agreed to wait for another Mandarin/English interpreter to become available.  When a second interpreter became available the applicant indicated that he also had difficulties working with her.  It appeared to me, as I advised the applicant, that he may have been unwilling to cooperate with that interpreter.  He repeatedly failed to break up his submissions so as to allow the interpreter the opportunity to interpret them and additionally spoke over the interpreter when she sought to speak.  After I indicated that I might consider it appropriate to dismiss the application if I were satisfied that the applicant was deliberately taking steps to avoid his application being heard, the matter proceeded using the original interpreter.  The second interpreter, nonetheless, kindly agreed to remain in Court lest any further problems of interpretation should arise.  No further problems arose.

8. The matters put to me by the applicant through his interpreter were that he is entitled to a protection visa because he has put reliable and truthful material before decision-makers.  He has expressed criticism of the conduct of his original migration agent.  He has indicated that he wishes to present his case again and do it properly himself.  He has further indicated that there may be photos and other material in China or Hong Kong that would assist his case.  He has indicated that there are problems getting hold of this material and he has requested more time to try to do so.  Despite my invitations to identify any error affecting the judgment of the Federal Magistrates Court he has not done so.

9. It is plain that what the applicant seeks is a second opportunity to present his claim to be entitled to a protection visa.  The merits of the applicant’s claim to be entitled to a protection visa are not issues to be determined either by this Court or by the Federal Magistrates Court.  The concern of this Court is whether the judgment of Emmett FM is one in which respect of which leave to appeal should be granted. 

10. The interlocutory judgment of Emmett FM is not attended by any doubt.  No useful purpose would be served by granting the applicant leave to appeal from it.  His application for a protection visa was unsuccessful before the Tribunal because the Tribunal did not find his written claims persuasive and he did not attend the rescheduled hearing before the Tribunal.  By his own conduct he deprived the Tribunal of the opportunity of exploring his claims.  The Tribunal was entitled to proceed as it did.  It was not open to the Federal Magistrates Court, and it is not open to this Court, to revisit the issue of the merits of the applicant’s claim to be entitled to a protection visa. 

11. The application is therefore dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:         August 2007

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr M D Snell
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007