SZLNL v Justice Buchanan & Ors

[2008] HCATrans 287

[2008] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S321 of 2008

B e t w e e n -

SZLNL

Plaintiff

and

JUSTICE ROBERT BUCHANAN

First Defendant

FEDERAL MAGISTRATE MATTHEW SMITH

Second Defendant

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Third Defendant

REFUGEE REVIEW TRIBUNAL

Fourth Defendant

Application for order to show cause

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 6 AUGUST 2008, AT 3.10 PM

Copyright in the High Court of Australia

__________________

SZLNL appeared in person.

MR T. REILLY:   I appear for the third defendant.  (instructed by Sparke Helmore)

MS D. WATSON:   Your Honour, I appear for the first and second defendants who submit to any orders save as to costs.  (instructed by Australian Government Solicitor)

LAN WANG interpreter:

HIS HONOUR:   Now, just before you go ahead, interpreter, there is an affidavit of 8 July 2008 of the plaintiff.  Is there any objection to that, Mr Reilly?  I will hand you down my copy.

MR REILLY:   I am sorry.  I have not seen that before, your Honour.  We have not been served, I am told.

HIS HONOUR:   Do you have any objection to it?

MR REILLY:   No, your Honour.

HIS HONOUR:   All right.  I have read that affidavit.  Just let me have it back, thank you.  Yes, what arguments or matters do you want to put forward in support of your application in addition to the outline of submissions filed on 8 July 2008?

SZLNL (through interpreter):   First of all, I would like to apologise to your Honour that I did not know the formality of the Court so when I went out I did not bow to you.

HIS HONOUR:   There is no problem about that.

SZLNL (through interpreter):   I feel that the orders or the judgment from the Federal Magistrates Court and also the Federal Court of Australia were unfair to my case, to my application, as well as with RRT, because they claimed the photos I have submitted to the Court or to RRT were only for the purpose of the application.

Your Honour, the applicant is saying one of the judges or the judges claimed that the photos I have submitted, you know, were only kind of play or abuse the system so I am a true Falun Gong practitioner.  I did not use that for any purpose.

Also, in regard to my passport, I was advised that I had been to Samoa.  As a matter of fact, I have never been to this country before.  The reason why I obtained a visa for Samoa was to come into Australia because I could not obtain a visa to come to Australia directly. 

The delegate and also the member of RRT believed that my claims were implausible.  In fact, my evidences were all true.  Perhaps during hearing with RRT member I was nervous so did not make myself very clear.  The member claimed that one of my relatives who was the head of the Tianjin PSB offices, there was no such a person.  I can tell the Court I do have such a relative who worked in such a role, in such a capacity.  He is a good friend of our family, of my father, and every year in New Year I visited him and also I gave him presents.  The member claimed that all these stories were made up, fabricated.  I can tell this is the truth.

I have been entering into the country in multiple occasions.  Therefore, the member believed that I am of no interest of the Chinese authorities.  Because I was in prison once, now I have already distributed all these leaflets or materials, all these activities are recorded.

My health has not been very well so I have been in Australia for quite a long time.  I am quite worried because not long ago a Falun Gong practitioner by the name of….committed suicide after his return to China, so how could the defendants say that I would have no risk, be of no danger to my life.  So I do not understand that.

I do not know Australian laws.  I have a lack of English abilities and I cannot afford to employ a solicitor, a lawyer.  The High Court of Australia has maybe given me some rebate or discount on fees.  I am quite grateful.  So I can tell the Court, or swear to the Court that all my evidence is true.  Therefore, I ask your Honour to look at my claim more carefully and give me a fair, just judgment.  Thank you.

HIS HONOUR:   On 11 June 2008, Justice Buchanan in the Federal Court of Australia dismissed an application for leave to appeal against an interlocutory judgment of the Federal Magistrates Court of Australia.  The application for leave to appeal to the Federal Court was filed out of time.  No application for an extension of time was made.  In any event, Justice Buchanan considered that there were no prospects of success on an appeal and that leave to appeal should not be granted.

The plaintiff is a citizen of the People’s Republic of China who most recently arrived in Australia in March 2007.  In March 2007, she lodged an application for a protection visa.  A delegate of the Minister refused the application for a protection visa in May 2007.  In June 2007, the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.  An oral hearing was conducted in August 2007.  The Tribunal decided the matter unfavourably to the plaintiff in October 2007.  The plaintiff in October 2007 sought judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia and that application was dismissed.  Thereafter, there was the application for leave to appeal against the judgment of the Federal Magistrates Court of Australia to which I have earlier referred.

There was no application for special leave to appeal against the unfavourable decision of Justice Buchanan.  The relief claimed in the present proceedings is for an order “directing the Federal Court to grant the plaintiff leave to appeal, allow the appeal and remit the matter to the Federal Magistrates Court for reconsideration according to law” and for constitutional and related relief in support of that complaint against the decision of Justice Buchanan.

The plaintiff filed lengthy written submissions which have been supplemented by oral argument today.  The third defendant has filed written submissions which appear to me to be substantially correct.  I am unable to see in the material advanced in support of the plaintiff’s application any arguable ground for relief of the nature of that claimed by the plaintiff.  I can see nothing in that material that causes me to doubt the correctness of the reasons for decision of Justice Buchanan.

The application is dismissed with costs.

The Court will adjourn until 7 August 2008 in Canberra.

AT 3.26 PM THE MATTER WAS CONCLUDED