SZKFF v Minister for Immigration and Citizenship

[2007] FCA 1723

FEDERAL COURT OF AUSTRALIA

SZKFF v Minister for Immigration and Citizenship [2007] FCA 1723

SZKFF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD1060 OF 2007

EMMETT J
8 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1060 OF 2007

BETWEEN:

SZKFF
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	8 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for leave to appeal be dismissed.

2.   Order 1 be stayed up to an including 29 November 2007.

3.   The first respondent notify the applicant of these orders as soon as practicable at the address for service shown in the notice of appeal.

4.   Leave be granted to the applicant to file and serve, no later than 16 November 2007, an application to rescind these orders.

5.   Any such application must be supported by an affidavit explaining the non-attendance of the applicant today and attaching full written submissions upon which the applicant seeks to rely in support of his application, and in support of any appeal, were the Court to rescind these orders.

6.   The applicant pay the first respondent’s costs in the sum of $2,000.

7.   The Refugee Review Tribunal be joined as a respondent for the application for leave to appeal. 

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	NSD1060 OF 2007

BETWEEN:

SZKFF
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

8 NOVEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. This proceeding is an application for leave to appeal from orders made by the Federal Magistrates Court dismissing summarily an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).

2. When the matter was called on for hearing today there was no appearance for the applicant.  However, shortly before the time fixed for the hearing, the Court received a facsimile communication purporting to come from a Weiming Qian.  The communication refers to the name of the applicant and the proceeding number, and says:

   “[The applicant] got accident this morning around 7 am.  He had been hit by a car while on the street.  He is in Bankstown hospital now.  Therefore, he is unable to come for the hearing. 

   I will provide the relevant document for you later.”

   There is nothing to indicate who Weiming Qian is, and there is no other evidence to explain the absence of the applicant. 

3. The applicant is a citizen of the Peoples Republic of China.  He arrived in Australia on 8 July 2006, and applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act) on 1 August 2006. A delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), decided to refuse to grant the visa on 14 September 2006. The applicant then applied to the Tribunal on 11 October 2006 for review of the delegate’s decision. On 21 December 2006, the Tribunal affirmed the decision not to grant the applicant a protection visa. In its reasons, the Tribunal observed that the applicant, having been invited to attend a hearing before the Tribunal, declined to do so.

4. The Tribunal noted that it appeared from the statement attached to his protection visa application that the applicant claimed to fear serious harm in China because he claimed to be a practitioner of Falun Gong.  However, the applicant provided no documentary evidence in support of his claims to be a Falun Gong practitioner, nor a history of persecution.  He provided no further information to the Tribunal at the time he lodged his review application. 

5. The Tribunal considered the applicant’s claims to be lacking in essential detail and, on the evidence before it, the Tribunal was not satisfied that the applicant had suffered persecution in the past, nor that he had a well-founded fear of persecution, within the meaning of the Refugees Convention, if he returned to China in the foreseeable future.

6. The applicant commenced a proceeding in the Federal Magistrates Court on 14 February 2007 seeking review of the Tribunal’s decision.  The grounds in the application were:

   “(1)     Jurisdictional error has been made.

   (2)      Procedural fairness has been denied.

   (3)      RRT did not give me a letter to explain doubts.”

   No particulars were provided. 

7. The Minister contended before the Federal Magistrates Court that no reasonable cause of action had been shown, and the Court ordered that there be an immediate hearing under rule 44.12 of the Federal Magistrates Court Rules to determine whether the application raised an arguable case. The Court was prepared to adjourn the hearing to enable the applicant to put further written material to the Court. However, the applicant decided that he did not want the hearing adjourned.

8. The Federal Magistrates Court found no error of law or denial of natural justice in the decision of the Tribunal or in the proceeding before it. The Court, therefore, found that the application did not raise an arguable case for the relief claimed, and dismissed it pursuant to that rule 44.12.

9. In support of his application for leave to appeal, the applicant filed, attached to an affidavit, a draft notice of appeal stating the following grounds:

   “(1)Refugee Review Tribunal had bias against me and did not make fair decision for my application.

   (2)On the hearing day on March 6, 2007 at Federal Magistrates Court, the Judge did not give me a chance to clarify all my points and provide more documents related to my claims.  Also, I was deprived of the rights to seek assistance from free legal solicitor.  The judge refused my application on my hearing date.  It is not fair.

   (3)I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.”

10. In the light of the reasons of the Federal Magistrates Court, those assertions appear to be completely without foundation.  In any event, on 4 September 2007, the applicant was directed to file and serve, no later than five clear working days before today’s hearing date, full written submissions upon which the applicant sought to rely in support of the application, and in support of any appeal were the Court to grant an extension of time or leave to appeal, insofar as that was necessary.  No such written submissions have been filed by the applicant. 

11. It is quite clear that the appeal would be completely without substance and that the application for leave to appeal, if leave to appeal is required, should be refused.  Otherwise the proceeding should be dismissed as frivolous and completely without substance. 

12. However, in light of the communication to which I have referred, I propose to stay orders dismissing the application for 21 days to enable the applicant, if so advised, to file evidence explaining his non-attendance and demonstrating that there would be some utility in rescinding the orders and giving him a further opportunity to make submissions in support of his application.

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

Associate:

Dated:        16 November 2007

The applicant did not appear.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	8 November 2007
Date of Judgment:	8 November 2007