SZNDE v Minister for Immigration and Citizenship
[2010] FCA 547
•11 May 2010
FEDERAL COURT OF AUSTRALIA
SZNDE v Minister for Immigration and Citizenship [2010] FCA 547
Citation: SZNDE v Minister for Immigration and Citizenship [2010] FCA 547 Parties: SZNDE v MINISTER FOR IMMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 166 of 2010 Judge: SPENDER J Date of judgment: 11 May 2010 Legislation: Federal Magistrates Court Rules 2001 Rule 13.03C(1)(c) Date of hearing: 11 May 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 11 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 166 of 2010
BETWEEN: SZNDE
Applicant
AND: MINISTER FOR IMMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
11 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal and an order to dispense with compliance with O 52 r 5(2) is refused.
2.The applicant to pay the costs of the first respondent of the application, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 166 of 2010
BETWEEN: SZNDE
Applicant
AND: MINISTER FOR IMMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE:
11 MAY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant filed an application on 23 February 2010, seeking leave to appeal and an extension of time to file and serve a draft Notice of Appeal in relation to the interlocutory orders of Raphael FM on 27 July 2009. The Federal Magistrate dismissed an application for an Order to Show Cause pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 on the basis that the applicant failed to appear at the final hearing. No reasons have been published in relation to that decision.
The applicant, a citizen of the People’s Republic of China, arrived in Australia on 6 June 2008. She claimed to be a practitioner of Falun Gong since 1998.
The Tribunal rejected the applicant’s claims to fear harm for the reason that she was a Falun Gong practitioner. The Tribunal made strong adverse credibility findings and, in particular, the Tribunal found that if the applicant had a genuine fear of persecution in China she would not have returned to China from Fiji in 2007. The Tribunal was not satisfied that the applicant had a well founded fear of persecution in China for any convention related reason and affirmed the delegate’s decision.
The applicant filed an application in the Federal Magistrates Court on 7 January 2009, seeking judicial review of the Tribunal’s decision. A hearing was listed on 27 July 2009, before Raphael FM. On that day the appellant failed to appear and the matter was dismissed for non appearance pursuant to Rule 13.03C(1)(c).
That order was interlocutory and so the applicant requires leave to appeal. It is apparent that the applicant today does not understand the basis on which this court can accede to her application. In her draft Notice of Appeal and in her application she has not provided any particulars or evidence in support of any alleged error in the decision by the Federal Magistrate. The application for leave to appeal should be filed within 21 days after the judgment appealed from was pronounced. The applicant should have filed her application on or before 17 August 2009, but did not file it until 23 February 2010, six months outside the prescribed period.
The explanation provided by the applicant does not explain why she was unable to file an application until six months after the summary dismissal of her matter. If the appeal for which she seeks leave is doomed to fail or if there are no arguable grounds of appeal raised by her, there should be no extension of time within which to apply for leave to appeal and no grant of leave to appeal.
The draft Notice of Appeal contains four unparticularised grounds which are the same as those which were pleaded the Federal Magistrate. Those grounds fail to raise any arguable basis of error on the part of the Federal Magistrate in exercising his discretion to dismiss the application for non appearance by the appellant.
Notwithstanding the pleas which the applicant has made to the Court to permit her to remain in Australia, it is not competent for this Court to decide other than in accordance with law. The decision of the Federal Magistrate for non appearance was not attended with any error and there is nothing in the draft Notice of Appeal to indicate that the exercise of the power to dismiss for non appearance was improper or in error.
The applicant has not sought in any meaningful way to review the approach and decision of the Federal Magistrate. She has not sought to particularise any jurisdictional error on the part of the Tribunal. There is nothing which the applicant has raised to warrant the grant of leave to appeal.
The applicant has failed to show that there was any error by the Federal Magistrate in the exercise of his Honour’s discretion. It follows that the decision to dismiss her application is not attended with any doubt such as to warrant its reconsideration on appeal. The personal distress of the applicant is understandable, but there is no basis to which she has pointed which would justify an application for leave to appeal and an extension of time to file an application for leave to appeal.
The application for leave to appeal and for an extension of time to file an application for leave to appeal is refused, with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 31 May 2010
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