SZKNV v Minister for Immigration and Citizenship

[2007] FCA 1972

FEDERAL COURT OF AUSTRALIA

SZKNV v Minister for Immigration and Citizenship [2007] FCA 1972

SZKNV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1507 OF 2007

FLICK J
14 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1507 OF 2007

BETWEEN:

SZKNV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	14 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.     The application be dismissed.

2.     The Applicant pay the costs of the First Respondent of and incidental to the hearing of the application.

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 1507 OF 2007

BETWEEN:

SZKNV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FLICK J
DATE:	14 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The present Application before the Court is an application for leave to appeal from the decision of the Federal Magistrates Court delivered on 17 July 2007. 

2. The Federal Magistrates Court ordered that the application should be dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). It was concluded by the learned Federal Magistrate that there was no reasonable case claimed.

3. Those orders of the Court were interlocutory: see r 44.12(2).  Leave to appeal to this Court is thus required: Federal Court of Australia Act1976 (Cth), s 24(1A). That sub-section confers an “unfettered discretion”. See Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399.

4. Considerations relevant for this Court in considering whether leave to appeal should be granted are:

   (a) whether in all the circumstances, the judgment of the primary judge is attendant with sufficient doubt to warrant it being reconsidered by this Court; and

   (b) whether substantial injustice would result if leave were refused, supposing the decision would be wrong. 

5. Today, when the matter was called on for hearing, there was no attendance by the Applicant.  On behalf of the First Respondent, an application was then made for the Application to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth), which provides:

   A single judge or a Full Court may:

   …
   (bb) make an order that an appeal to the court be dismissed or:

   …
   (ii) failure of the appellant to attend a hearing relating to the appeal.

   That application — namely that the application be dismissed — should be granted.  Even had the Applicant attended, the application for leave would in all likelihood have been dismissed. 

6. The decision of the Federal Magistrates Court considered the decision of the Refugee Review Tribunal signed on 14 March 2007.  The Tribunal relevantly concluded:

   In dealing with this application, the Tribunal has formed a view that the applicant’s critical claims lack credibility and cannot be accepted.  During the course of the hearing, the applicant gave his evidence in a well rehearsed and parrot like fashion.  His answers were often not responsive to the questions asked, but merely repeated his claims using almost identical language.  When asked questions that were incidental to his claims, his answers were more hesitant and often contradictory.  The Tribunal found that some of the applicant’s claims and evidence were highly implausible.  This together with the applicant’s demeanour and the manner in which he gave his evidence seriously effected his credibility.

   The Tribunal continued:

   In view of the claims made by the applicant and the alleged risks he undertook in being an active member of the underground church in China, the Tribunal finds that the applicant’s explanation as to why he is a Christian is highly implausible. 

   In dismissing the application, the Federal Magistrate concluded that it raised no arguable case for the relief claimed.

7. The proposed grounds of appeal, had leave been granted, were formulated as follows:

   (1) The Federal Magistrates [sic] erred in law.

   (2) The Federal Magistrates [sic] was wrong in finding that the Refugee Review Tribunal … acted properly in its findings.

8. It is considered that the decision of the Federal Magistrates Court was correct and that the draft Notice of Appeal raises no ground, or arguable ground, which has any likelihood of success. 

9. The orders of the Court are:

   1.    The application be dismissed.

   2.    The Applicant pay the costs of the First Respondent of and incidental to the hearing of the application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:        28 November 2007

The Applicant:	No appearance
Solicitor for the Respondent:	E Knight (Australian Government Solicitor)
Date of Hearing:	14 November 2007
Date of Judgment:	14 November 2007