FEDERAL COURT OF AUSTRALIA

SZDNF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 378

SZDNF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1767 OF 2004

EMMETT J

21 MARCH 2005

SYDNEY

ON APPEAL FROM A JUDGEMENT OF THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.                  The appeal be dismissed pursuant to s25(2B)(bb)(ii).

2.                  The appellant pay the respondent’s costs in the sum of $2,000.

3.                  The respondent inform the appellant of the terms of s 25(2B)(bc).

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

ON APPEAL FROM A JUDGEMENT OF THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     The appellant in this matter claims to be a citizen of the People’s Republic of China.  He arrived in Australia on 22 February 2003.  On 3 March 2003 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’).  On 20 June 2003, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa.  On 25 July 2003 the appellant applied to the Refugee Tribunal (‘the Tribunal’) for review of that decision.  On 15 March 2004 the Tribunal affirmed the decision not to grant a protection visa.  The reasons for that decision were published on 6 April 2004.

2                     On 7 May 2004, the appellant filed an application to the Federal Magistrates Court seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision.  The application stated that the appellant was notified of the Tribunal’s decision on 15 April 2004.  The grounds of the application were:

‘(1)      I fear persecution for reason of membership of a particular social group, Falun Gong;

(2)       I believe the fear of persecution is well founded.  I am a genuine Falun Dafa practitioner and I started to exercise it in May 1996.  Just because of this I have been put into detention and jailed for several times by the Chinese authority.  In March 2000 I was arrested and detained at Qili Detention [illegible] District Tianjiu.  In June 2002, several policemen from Tianjin Police Station arrested me at home and sent me into jail illegally.’

3                     On 9 November 2004, the Federal Magistrates Court ordered that the application be dismissed and that the appellant pay the Minister’s costs in the sum of $4,000.  The Federal Magistrates Court observed that the application was deficient and does not identify anything in relation to the decision of the Tribunal, or the proceedings before the Tribunal, that would assist the Court in determining whether there was any reviewable legal error.  His Honour observed that the Tribunal found significant difficulties with the appellant's claims about his involvement with the Falun Gong.  His Honour considered that the Tribunal’s findings were reasonably open to it on the material before it and that the Tribunal made no legal error going to jurisdiction in coming to its decision. 

4                     On 29 November 2004 the appellant filed a notice of appeal to this Court.  The grounds stated in the notice of appeal are as follows:

‘(a)      I face a risk of being jailed if I return to China because I am a Falun Gong practitioner;

 (b)      the fear is well-founded because I have being [sic] persecuted by Chinese Government.’

5                     When the matter was called on for hearing today there was no appearance for the appellant.  The appellant had been in court when I fixed the matter for hearing.  In addition, the Minister’s solicitors wrote to the appellant on 9 March 2005 reminding him that the matter was fixed for hearing today.  At my suggestion, the solicitor for the Minister telephoned the appellant, with the assistance of an interpreter.  The solicitor for the Minister informed the Court that, in the course of that conversation, the appellant said that he had forgotten about the appeal, that he was in Newcastle and, that he would not be able to come to a hearing.  When informed that the Minister proposed to have the matter dismissed for want of appearance, the appellant responded ‘You do whatever you have to do’.

6                     The appeal has no possible prospect of success, and the Minister asks for an order that it be dismissed for want of appearance.  In any event, it would be dismissed on the merits on the basis of the material presently before me. 

7                     Section 25(2B)(bb)(ii) relevantly provides that a judge may make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal.  In the circumstances, I consider that it is appropriate to accede to the Minister’s request to make an order pursuant to that provision.  However, I propose to direct the Minister to inform the appellant of the terms of s 25(2B)(bc).

8                     The Minister asks for her costs in the sum of $2,000, notwithstanding any evidence as to that assessment.  In the interests of saving further expenditure it seems to me desirable to accede to that request. 

Associate:

Dated:              18 April 2005