SZKJS v Minister for Immigration and Citizenship

[2007] FCA 1820

FEDERAL COURT OF AUSTRALIA

SZKJS v Minister for Immigration and Citizenship [2007] FCA 1820

SZKJS v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD1159 OF 2007

EMMETT J
15 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1159 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKJS Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	15 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs.

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	NSD1159 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKJS Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
JUDGE:	EMMETT J
DATE:	15 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for leave to appeal from orders made by the Federal Magistrates Court on 5 June 2007.  By those orders, the Federal Magistrates Court summarily dismissed 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.  The solicitors for the first respondent, the Minister for Immigration and Citizenship (the Minister), informed the Court that several communications addressed to the applicant at his address for service contained in the application for leave to appeal had been returned.  I also note that communications sent to the applicant at that address by the registry have also been returned. 

3. The Minister’s solicitor informed the Court that further inquiries had been made, as a result of which the applicant had been located at an address in Victoria.  On 7 November 2007, the Minister’s solicitors wrote to the applicant at that address, enclosing the Minister’s outline of submissions.  The letter also informed the applicant that the application for leave was listed for hearing today and that, if the applicant did not attend the hearing, the Minister would ask the Court to dismiss the application with costs. 

4. Against that background, the Minister has asked the Court to dismiss the application for leave, for want of appearance of the applicant.  Before acceding to that request, I propose to say something about the merits of the application. 

5. The applicant is a citizen of the Peoples Republic of China, who arrived in Australia on 13 February 2004.  On 8 August 2006 the applicant applied for a protection (class XA) visa under the Migration Act 1958 (Cth) (the Act). A delegate of the Minister decided to refuse to grant a visa on 19 September 2006. On 23 October 2006 the applicant applied to the Tribunal for review of the delegate’s decision and on 24 January 2007, the Tribunal affirmed the decision not to grant a protection visa.

6. In its reasons, the Tribunal said that it had concluded that the applicant’s critical claims lacked credibility and could not be accepted.  In particular, the Tribunal did not accept the applicant’s claims that he became a Falun Gong practitioner in 1999 and feared persecution if he returned to China by reason of his desire to practise Falun Gong.  The Tribunal also did not accept the applicant’s claim that he had continued to be a Falun Gong practitioner since his arrival in Australia, or that he participates in protests as he claimed.  The Tribunal also had regard to the fact that the applicant arrived in Australia on 13 February 2004, but did not make an application for a protection visa until some two and a half years later, on 8 August 2006.  The Tribunal considered that, if the applicant were a genuine refugee, fleeing persecution, he would have claimed asylum at the earliest possible opportunity after arriving in Australia.  The Tribunal was not satisfied that there was any real basis for the applicant’s claim to fear persecution. 

7. The applicant commenced a proceeding in the Federal Magistrates Court on 19 May 2007.  On 10 April 2007, the Federal Magistrates Court granted the applicant leave to file and serve by 25 May 2007 an amended application, including any additional grounds of review with complete particulars of each ground.  On that day, the applicant filed an amended application, stating grounds as follows:

   “(1)The Tribunal had bias against me and made a decision on my application based the officer’s assumption not evidence and materials.

   (2)The Tribunal also committed jurisdictional error by failing to give the applicant in accordance with s 424A of the Migration Act 1958 notice in writing of particulars of information that formed part of the reasons for affirming the decision of the delegate.

   (3)     The Tribunal relied upon irrelevant materials.”

8. After a hearing on 5 June 2007, the Federal Magistrates Court, for reasons given orally on that day, dismissed the application under rule 44.12(1)(a), on the ground that the applicant did not raise an arguable case for the relief claimed.  The primary judge referred to the grounds specified in the amended application.  His Honour also indicated that he had considered the reasons given by the Tribunal and its procedures and was unable to identify any arguable jurisdictional error affecting the decision.  His Honour said that no arguable substance for the allegations concerning bias or failure to comply with s 424A of the Act was shown in the material before the Court.

9. The application for leave to appeal to this Court, which was filed on 22 June 2007, attached a draft notice of appeal, which made no complaint of error on the part of the Federal Magistrates Court, but simply asserted errors on the part of the Tribunal.  The errors on the part of the Tribunal were the same as those alleged in the original application to the Federal Magistrates Court.  No particulars were provided.  On 17 August 2007, the applicant was directed to file and serve, no later than five clear working days before the hearing date, full written submissions upon which the applicant seeks to rely in support of the application and in support of any appeal to the Court to grant leave to appeal.  No submissions were filed on behalf of the applicant.

10. In all of the circumstances there appears to be no substance whatsoever in the application for leave.  Accordingly, I propose to accede to the Minister’s application to dismiss the proceeding. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        26 November 2007

The Applicant did not appear.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 November 2007
Date of Judgment:	15 November 2007