FEDERAL COURT OF AUSTRALIA

SZCDX v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1527

SZCDX AND ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1573 OF 2004

STONE J

23 NOVEMBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.           The application for leave to appeal be dismissed.

2.           The applicant pay the respondent’s costs in the amount of $800.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from orders made by a Federal Magistrate.  The applicants are husband and wife who applied for protection visas in December 2002.  The wife has not made any claims or taken any steps independent of those of her husband at any stage of the application process.  Consequently in these reasons a reference to ‘the applicant’ should be understood as referring to both applicants. 

2                     Pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001, the Federal Magistrate dismissed the applicant’s application for a review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 27 November 2003.  Rule 13.03 is as follows: 

‘Rule 13.03 Default in taking required step etc

(1)               This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court.

(2)               Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order:

(a)               that the step be taken within a stated time; or

(b)               to end the proceeding or dismiss a response.

(3)               The Court may make the order sought or another order that it considers appropriate.’ 

3                     The application to the Federal Magistrates Court was filed on 12 December 2003.  A directions hearing in respect of that application was held on 12 May 2004 at which time the Registrar, with the consent of the parties, made orders including that the applicant file and serve an amended application giving complete particulars of each ground of review being relied on by 8 July 2004. 

4                     The applicant did not comply with this order, and as permitted by the orders made on 12 May, the respondent had the matter listed in the non-compliance list before the Federal Magistrate on 11 October 2004 for the purpose of seeking summary dismissal of the application.  A week prior to that date the applicant supplied an amended notice of appeal but, on 11 October, the Federal Magistrate considered that the amended notice of appeal did not identify any jurisdictional error in the decision of the Tribunal.  Accordingly his Honour dismissed the application. 

5                     The Federal Magistrate's decision did not finally resolve the issue between the parties and is thus an interlocutory decision.  Section 24(1)(a) of the Federal Court of Australia Act (Cth) 1976 provides that leave to appeal is required in respect of any interlocutory judgment including an interlocutory judgment of the Federal Magistrates Court.  The applicant has applied for leave to appeal within the time prescribed by O 52 r 5(2)(a). 

6                     Leave to appeal from an interlocutory decision, however, will not be given where the appeal has no real prospect of success; Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 185 per Lander J at [23], with whom Carr and Gyles JJ agreed.  The draft notice of appeal provided by the applicant lists seven grounds of appeal although a number of those grounds consist of references to decided cases without explanation.  It is not necessary for me to review in detail the grounds set forth in the notice of appeal.  In my view the notice does not identify any ground of appeal that has the slightest hope of succeeding in this Court.

7                     At the hearing before me the applicant appeared without legal representation; he has no legal training and virtually no English.  In support of his application, he provided an outline of submissions that were prepared by a third party, however despite the assistance of an interpreter the applicant was not able to elaborate on the written submissions he had provided. 

8                     In summary, those submissions assert a lack of procedural fairness and other jurisdictional errors not specified.  They fail to take account of s 422B of the Migration Act 1958 (Cth) (‘Act’) which states that Division 4 of Part 7 of the Act provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which the Division deals. 

9                     Section 422B applies to the application made to the Tribunal for review of the decision of the Minister’s delegate refusing the application for a protection visa.  In his application for review before the Tribunal, the applicant provided no details of the reasons for making the application.  The relevant section of the application form is blank except for a barely legible handwritten comment that says that the submissions will be sent either ‘in advance’ or ‘if advised’.  Either way the applicant did not provide the Tribunal with any information additional to that which was provided with his initial application.  The Tribunal did, however, have before comprehensive reasons provided by the Minister's delegate for refusing that application. 

10                  On 5 September 2003, the Tribunal wrote to the applicant advising that it was unable to make a favourable decision on the material before it, and invited the applicant to attend a hearing on 31 October 2003 to give oral evidence and present arguments in support of the claims made in the application. 

11                  The applicant refused the opportunity to give oral evidence and the Tribunal, quite properly, proceeded to make a determination on the evidence available to it.  The Tribunal considered the evidence and was not satisfied that the applicant has a well-founded fear of persecution.  Relevant to the Tribunal's decision was the lack of detail to support the claims made.  The Tribunal said: 

‘If the applicants had given oral evidence to this Tribunal, I would have questioned them about these matters.  In the absence of that opportunity, I am unable to establish the relevant facts.’ 

12                  Not surprisingly, the Tribunal rejected the application.  I am satisfied that the applicant was given every opportunity to make and to support his claims.  I see nothing in the decision of the Tribunal that would suggest that the applicant did not receive a fair hearing or that the Tribunal made any jurisdictional error. 

13                  I am therefore satisfied that any appeal made by the applicant would not be successful and for that reason I refuse leave to appeal.  The applicant must pay the respondent's costs of this application fixed in the amount of $800. 

Associate:

Dated:              23 November 2004