FEDERAL COURT OF AUSTRALIA

SZEDW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 462

SZEDW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 188 of 2005

WILCOX J

14 APRIL 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the costs of the respondent.

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

WILCOX J:

1                     This is an appeal against a decision of Federal Magistrate Lloyd-Jones dismissing an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the appellant a protection visa.  Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that the appeal be heard by a single judge. 

2                     The appellant based her application for a protection visa on the claim that she practised Falon Gong in China and feared persecution on that ground if returned to China.

3                     The material before the Tribunal was scanty and the Tribunal formed the view that it was not able to make a decision favourable to the appellant without an oral hearing.  Accordingly, the Tribunal gave notice to the appellant of arrangements for an oral hearing. However, she failed to attend.  Under those circumstances, the Tribunal found that, in view of the lack of detail contained in the protection visa application, it was not satisfied that the applicant was currently a Falon Gong practitioner or had practised Falon Gong in China.  For that reason, the application for a protection visa was refused.

4                     The appellant did attend the hearing in the Magistrates Court.  However, she put no submissions of substance to the Court.  Apparently, she contented herself with putting what the magistrate called:

‘[A] limited oral submission during the hearing concerning the timing of the outcome of the Court's deliberations.’

5                     The magistrate commented that:

‘The grounds of the original application are vague and unparticularised and merely assert the applicant's claim for refugee status.’

Having regard to those circumstances, it is not surprising that the application for review failed. 

6                     On 24 March 2005, the matter came before me at a directions hearing.  I pointed out to the appellant this Court could intervene in relation to the Tribunal's decision only if satisfied the Tribunal had fallen into jurisdictional error.  I explained the meaning of that term and the appellant assured me she understood the explanation.  I emphasised to the appellant that it would be necessary for her to put some argument about error of law or failure to follow correct procedures.  I suggested she obtain legal advice.  If she had no such argument, it would be desirable for her to discuss with the Minister’s representative withdrawal of the appeal before unnecessary costs were incurred. 

7                     Regrettably, all of this advice seems to have been ignored.  The appellant has apparently not sought legal assistance.  She has not withdrawn the appeal.  When asked today the basis upon which she argued the appeal should be allowed, she simply said she wanted more time.  Later, she said she was indeed, a Falon Gong practitioner and would be persecuted if she returned to China. 

8                     It is unfortunate that resources have been expended in relation to a claim which even the appellant, herself, does not seem to take seriously.  No argument of jurisdictional error has been put before the Court.  The Magistrate could find none.  I have read the Tribunal’s decision.  No such error is apparent to me. 

9                     The order of this Court is that the appeal be dismissed with costs. 

Associate:

Dated:              27 April 2005