FEDERAL COURT OF AUSTRALIA

SZBSY v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 728

SZBSY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N401 of 2004

JACOBSON J

3 JUNE 2004

SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant pay the respondent’s costs

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 15 March 2004 a Federal Magistrate summarily dismissed the applicant's application for review of a decision of the RRT.  The Magistrate dismissed the application under Part 13 rule 13.10(a) of the Federal Magistrates Court Rules.  The rule permits a Magistrate to dismiss a proceeding that discloses no reasonable cause of action. 

2                     A judgment summarily dismissing an application is an interlocutory judgment; see NACA v The Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659. 

3                     In paragraph 5 of the Notice of Appeal, filed on 24 March 2004, the applicant purported to appeal against the Magistrate's judgment.  However the effect of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) is that an appeal cannot be brought unless leave is granted.

4                     On 16 April 2004 I ordered that the purported notice of appeal be treated as an application for leave to appeal and an application for an extension of time in which to file and serve a notice of appeal.  I also gave directions for the filing of an application for leave to appeal and an affidavit clearly identifying the grounds on which leave should be granted and identifying any grounds of jurisdictional error relied upon.  My directions also provided for a draft notice of appeal identifying the grounds of jurisdictional error. 

5                     This is the hearing of the application for leave to appeal and for an extension of time which I have power to hear under s 25(2) of the Federal Court Act. 

6                     The applicant has filed an amended application which states in general terms that he is a self-represented litigant and that he has been persecuted in China as a member of the Falun Gong.

7                     The amended application does not comply with the directions which I gave, because it does not disclose on its face any ground of jurisdictional error.  Nevertheless, I will refer briefly to the decisions of the RRT and the Federal Magistrates Court and to the arguments which have been put to me this morning.

8                     The applicant is a citizen of the People's Republic of China who arrived in Australia on 4 November 2002.  He lodged an application for a protection visa, which was refused by a delegate of the Minister.  He sought review of that decision by the RRT.

9                     The RRT noted that it had written to the applicant, who was assisted by a migration agent, advising the applicant that it had considered the material before it in relation to the application, but that it was unable to make a decision in his favour on that information alone.  The RRT noted that it had invited the applicant to attend a hearing, but that it had received notification that he did not wish to attend.  The RRT therefore determined the application on the basis of the written information before it.  This information consisted principally of a written statement of the applicant.

10                  The RRT was of the view that the applicant had made a number of bare assertions of persecution without any detail of the information in support of the assertions.  The RRT said that the claims amounted to a number of very brief unsubstantiated assertions with insufficient information to enable the RRT to be satisfied as to the facts or to assess the chance of persecution in the future.

11                  The Federal Magistrate dismissed the application for review because he considered that the application was hopeless and bound to fail.  He accepted that where in the circumstances the applicant had declined the invitation to attend the hearing and provided limited detail and evidence in support of the claims, it was open to the RRT to find that it could not be satisfied of the veracity of the claims.  The Federal Magistrate accepted the submission that the application for review was devoid of any particulars, and he observed that no affidavit had been filed accompanying the application and there were no material facts upon which the applicant's claims were said to be based, nor was anything disclosed to raise any real question to be tried in the matter.

12                  The Magistrate referred in his judgment to a submission put by the applicant that he had not received the hearing invitation from the RRT and that the agent had acted without instructions.  He also recorded a submission that there was information which had become available and was not put before the RRT at the time of the decision.  The Magistrate dismissed this submission on the ground that any fault on the part of the migration agent did not support any assertion of jurisdictional error.  He also rejected the argument that fresh evidence was available because he took the view that the material which was advanced did not fall within the test recognised by a Full Court in NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42].

13                  All that has been put before me this morning by the applicant is that he relies upon the matters referred to in the amended application, and he repeats the submission which he put to the Magistrate that he did not receive the invitation to attend the hearing.

14                  It seems to me that the application does no more than repeat the effect of the material put before the RRT in the written statement.  In my view, there is nothing in the application to suggest there is any fresh evidence, let alone evidence which might have the effect of producing a different result if it had been before the RRT.

15                  I turn then to the question of the invitation to attend the hearing.  The evidence before the Federal Magistrate disclosed that the application for review by the RRT nominated the applicant's home address at 2/14 Argyle Street, Campsie.  The application for review also nominated as the applicant's authorised recipient Mr Jack Meng, of Jack Meng Immigration Pty Limited.  The address of that company was set out in the application form.

16                  The RRT’s invitation to the applicant to attend the hearing was sent to the applicant at the address at Campsie referred to in the form of application for review.  It was also sent to Mr Meng at the address stated in the application form.  The response to the hearing invitation stated that the applicant did not want to attend the hearing.

17                  The applicant told me that the signature which appeared on the form of application for review was not his signature, but the application was filed and was the document upon which the RRT exercised its jurisdiction.

18                  It is sufficient that the form of invitation to attend the hearing was sent to the applicant at the address nominated in the form of application for review.  In any event, the effect of section 441G of the Migration Act 1953 (Cth) is that notice to an applicant's authorised recipient is sufficient notice and is taken to be notice to the applicant.  It follows that there is no substance in the submission that the applicant did not receive the invitation personally.

19                  For these reasons the application for leave to appeal must be dismissed.  I will order the applicant to pay the respondent's costs of the application.

Associate:

Dated:              3 June 2004