FEDERAL COURT OF AUSTRALIA

SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1498

SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs

N 1393 of 2004

JACOBSON J

17 NOVEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.          The application for leave to appeal is refused.

2.          The applicant to pay the costs of the application.

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

REASONS FOR JUDGMENT

1.                  This is an application for leave to appeal against the orders and judgment of Federal Magistrate Baumann dated 6 September 2004.  On that date the learned Magistrate upheld the Minister's notice of objection to competency which was made pursuant to s 478A of the Migration Act 1958 (Cth) (“the Act”) on the ground that the application was not filed within 28 days of the notification of the decision of the Refugee Review Tribunal (“the RRT”) and dismissed the application for judicial review of the RRTs decision. 

2.                  On 24 September 2004, the applicant filed a document entitled “Notice of Appeal” in the registry of the court.  On 7 October 2004, I ordered that the purported notice of appeal be treated as an application for leave to appeal. 

3.                       Leave to appeal is required pursuant to section 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the orders and judgment of the Federal Magistrate are interlocutory. 

4.                       The principles which apply to determination of an application for leave to appeal were stated by a full court in Decor Corporation Pty Limited and Dart Industries Incorporated (1991) 3 FCR 397.  There the full court said that the two principal considerations are, first, whether in all the circumstances the decision from which leave is sought is attended by sufficient doubt to warrant reconsideration and, second, whether any substantial injustice would result.

5.                       In Brilliant Digital Entertainment Pty Limited v Universal Music Australia Pty Limited [2004] FCAFC 270 at [3], Black CJ and Stone J said that the two criteria should not be applied rigidly or exhaustively but the court should take into account the circumstances of the particular case. 

6.                       The applicant is a citizen of the Peoples Republic of China (“PRC”).  She practised as a doctor in China from 1975 to April 2000.  She has a husband and a daughter, both of whom remain in China.  The applicant arrived in Australia on 17 April 2000 and she made an application for a protection visa on 26 June 2001, claiming to have a well founded fear of persecution on the ground of her adherence to the Falun Gong, which she claimed to have joined in 1997.  She claimed that this caused her to be targeted by the Government of the PRC in a campaign against the Falun Gong. 

7.                       On 25 September 2001, a delegate of the Minister refused to grant the applicant a protection visa.  The applicant, within time, applied to the RRT for a review of the merits of her application.  On 12 August 2002, the RRT sent correspondence to the applicant and her migration agent advising them that the RRT was unable to make favourable findings on the material alone and it gave notice that the matter would be decided after a hearing before the RRT on 18 September 2002.  However, when the applicant's case came before the RRT, she did not appear.

8.                       The RRTs reasons were handed down on 15 October 2002.  The RRT found that the applicant's claims were vague and unsubstantial and amounted to “nothing more than unsupported allegations”.

9.                       The RRT observed that without the opportunity to question the applicant, it could not be satisfied that she was an adherent of Falun Gong or that the Chinese authorities had any ongoing adverse interest in her.  For those reasons, the RRT was not satisfied that the applicant had a well founded fear of persecution for a Convention reason.  On 18 June 2004 the applicant filed an application in the Federal Magistrates Court.  The applicant was at that time in detention in Villawood.  In his decision of 6 September 2004, at paragraph 4, the Federal Magistrate observed that the applicant from the bar table said that she was unaware of the hearing before the RRT. 

10.                   The learned Magistrate noted that the RRTs decision was handed down on 15 October 2002 and that for almost 2 years “nothing much happened”, and that there was no evidence that the applicant made any attempt to find out what occurred at the RRT or to seek a rehearing at any level.  The Magistrate was satisfied that the applicant had an opportunity to present evidence to the RRT to enable the RRT to consider her application on its merits but that the applicant had failed to take advantage of that opportunity. 

11.                   The Federal Magistrate noted at [5] to [6] that the application filed on 18 June 2004 was of a general nature in which the applicant stated that the decision of the RRT involved “Jurisdictional error of law involving an incorrect interpretation of the applicable law to the facts of the cases was found in the decision”.

12.                   The grounds set out were described by the Federal Magistrate as “far from helpful, alleging errors of fact and failure to consider the application properly”.

13.                   In response to the application, the Minister filed a notice of objection to competency on the ground that the application was not filed within 28 days of notification of the Tribunal's decision.  On 29 June 2004, the Registrar directed that the applicant file and serve an amended application, giving complete particulars of each ground of review being relied upon but the applicant failed to comply with that direction.

14.                   At the hearing before the Magistrate the applicant sought to provide further evidence but the learned Magistrate indicated that the court was limited to identifying any jurisdictional error and could not conduct a merits review of the hearing in the RRT.  The Federal Magistrate at [10] said that the findings of fact of the RRT were reasonably open and that there had been nothing filed by the applicant to establish jurisdictional error.  As a result he found that the RRTs decision was a privative clause decision and “in circumstances where there is no power for the court to extend time, the respondent's objection to competency must, as a matter of law, succeed”.

15.                   The application for leave to appeal states:

“I don’t agree the judge Mageistral Raphael (sic) made the decision and RRT decision is wrong and unfair. He doesn’t accept my evidence or other material at that time (sic). In fact the applicant’s is well-founded fear by the judgment of McHugh J already quoted observation is made at P56.”

16.                   The applicant did not comply with orders I made on 7 October 2004, directing her to file and serve a draft notice of appeal clearly identifying the grounds of jurisdictional error relied upon and confirming the particulars of her evidence and grounds of review to be relied upon.  On 11 November 2004, the applicant sent correspondence to the court seeking an extension of time for a month stating that:

“I’m still asking the legal documents relating to my case from China to be strong enough legal case at the court… My case is very important to me and I think I will win if I complete the legal documents.”

17.                   On 15 November, the registry wrote to the applicant stating, in accordance with a direction given by me, that the request for an extension of time was refused but that she could make an application and provide reasons seeking an adjournment of the hearing today.  The applicant appeared before me in person.  She made four points and I will deal with each of them. 

18.                   The first point was that the Department had lost her evidence which supported her claim to be a practitioner of Falun Gong.  The short answer to this submission, as was observed by Ms Rayment, who appeared for the Respondent, is that there is no evidence to support it.  The applicant was represented by a migration agent and the court book contains the documents which were before the RRT. 

19.                   The second point was that the RRT decision was said to be unfair because the RRT found that practitioners of Falun Gong are not persecuted in China.  This was said by the applicant not to be true.  That is to say that members of the Falun Gong are persecuted.  As I endeavoured to make clear to the applicant, the present application is not one in which I can assess the country information for myself. 

20.                   It has been made clear on numerous occasions to the applicant that the court does not review the merits of the decisions of the RRT and it is necessary to establish jurisdictional error.  In any event, the matter with which the applicant takes issue, namely the accuracy of the country information, was put to the applicant by the Department in a letter of 2 August 2001 to which the applicant responded in a letter dated 2 September 2001.  Those letters were before the RRT as it had the Department's file.

21.                   The third point made by the applicant was that she did not know of the hearing before the RRT.  However, the court book indicates that the letter from the RRT was sent to the applicant at the residential address stated in her application and that a copy was sent to her migration agent.  There was no response and the RRT stated in its decision that it had checked and confirmed that it was in possession of the applicant's most recent address. 

22.                   The fourth point was that the applicant meets the criteria for refugee status in accordance with the Convention.  However, this is an attempt to challenge the findings of fact which were made by the RRT.  The Magistrate found at [10] that those findings were reasonably open, no error having been demonstrated in the Magistrate's finding.

23.                   The short answer to all of the points made by the applicant is that she has not identified any error in the Magistrate's reasons or in his decision nor has she been able to point to any jurisdictional error made by the RRT. 

24.                   I have carefully considered the decision of the Magistrate and the decision of the RRT.  I cannot see any error in the Magistrate's reasons nor can I see any jurisdictional error in the decision in the RRT.  For those reasons, the decision from which leave to appeal is sought is not attended by sufficient doubt to warrant reconsideration by the court and, accordingly, leave to appeal is refused.  I order the applicant to pay the costs of the application.

Associate:

Dated:              18 November 2004