FEDERAL COURT OF AUSTRALIA

SZIGE v Minister for Immigration and Multicultural Affairs [2006] FCA 1084

MIGRATION – application for leave to appeal – whether in all the circumstances the decision is attended by sufficient doubt to warrant reconsideration by Full Court

Held: Decision of Federal Magistrate not attended by sufficient doubt to warrant reconsideration by Full Court. Application refused.

Federal Court of Australia Act 1976 (Cth) s 24(1)

Migration Act 1958 (Cth) s 426A

Federal Court Rules O 52 r 5(2)

Federal Magistrates Court Rules 2001 (Cth) r 44.12

MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544 cited

Niemann v Electronic Industries Ltd [1978] VR 431 applied

SZGCH v Minister for Immigration & Multicultural Affairs [2006] FCA 809 cited

SZIGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 656 OF 2006

COLLIER J

18 AUGUST 2006

BRISBANE

THE COURT ORDERS THAT:

1.                  The application for leave to appeal is refused.

2.                  The applicant pay the first respondent’s costs.

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 a judgment of a Federal Magistrate handed down on 13 March 2006. Driver FM dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 7 December 2005 and handed down on 3 January 2006.

2                     The application to this Court is made under O 52 Div 1 Federal Court Rules. The applicant seeks the following orders:

1.      The decision of the Refugee Review Tribunal be quashed.

2.      The Tribunal be required to determine his application according to law.

3.      Such other orders as the court deems fit.

Background

3                     The applicant is a citizen of the People’s Republic of China who arrived in Australia on 8 May 2005. On 27 May 2005 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (‘the Act’). The application for a protection visa was refused by a delegate of the Minister on 24 August 2005. On 27 September 2005 the applicant applied to the Tribunal for a review of that decision. The applicant claimed in his protection visa application and before the Tribunal that he had a well-founded fear of persecution by the Chinese authorities for being a Falun Gong/Falun Dafa practitioner.

4                     On 25 October 2005 the Tribunal wrote to the applicant advising him that it was unable to make a favourable decision on the information before it, and invited the applicant to attend a hearing. The applicant did not contact the Tribunal and did not attend the hearing. The Tribunal was not satisfied on the information before it (including the applicant’s protection visa application and the delegate’s decision record) that the applicant had a well-founded fear of persecution, and accordingly affirmed the decision not to grant a protection visa.

5                     On 3 February 2006, the applicant filed an application in the Federal Magistrates Court of Australia seeking an order that the respondents show cause why a remedy should not be granted in respect of the decision of the Tribunal. On 3 March 2006 at a directions hearing, Driver FM struck out the applicant’s grounds of review but gave leave for the applicant to file an amended application. The grounds relied on by the applicant, as amended on 8 March 2006, were that:

·         the Tribunal failed to provide natural justice

·         the Tribunal made findings that were biased

·         the Tribunal denied the applicant procedural fairness

·         the decision was an improper exercise of power

·         the decision was contrary to law and

·         the Tribunal did not take into account the danger to the applicant if he were to return to China.

6                     In his decision of 13 March 2006 Driver FM considered the reasoning of the Tribunal and found no arguable jurisdictional error. His Honour was of the view that the Tribunal’s decision was based on the insufficiency of information before it and that it did not make any adverse findings in relation to the applicant’s claim that he was a Falun Gong practitioner. The Tribunal did what it could to keep the applicant informed of the application and was not on notice of any reason requiring an adjournment. The Federal Magistrate could not see anything in the amended application that could support an arguable case of jurisdictional error and dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

Application to this Court

7                     On 31 March 2006 the applicant filed an application for leave to appeal to this Court. Leave to appeal is required in this matter under s 24(1) Federal Court of Australia Act 1976 (Cth) which provides:

‘An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the court or judge gives leave to appeal.’

8                     Section 24(1) includes judgments of the Federal Magistrates Court.

9                     The decision of Driver FM was a decision of an interlocutory nature, being a decision to dismiss the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). That this is so is clarified by r 44.12 (2) which states:

‘To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.’

Time for filing

10                  I note that the applicant seeks an order that compliance with O 52 r 5(2) Federal Court Rules be dispensed with.

11                  Order 52 r 5(2) provides:

‘An application shall be filed within 21 days after –

(a)   the judgment was pronounced; or

(b)   a later date fixed for that purpose by the court of judge who pronounced the decision.’

12                  The applicant’s application was filed with the NSW District Registry of the Federal Court on 31 March 2006, some 18 days after the judgment of Driver FM was handed down. In these circumstances the applicant has in fact complied with O 52 r 5(2) and as such no such order is required. The applicant’s application for leave to appeal was filed within the correct time for filing. Counsel for the first respondent made oral submissions accepting that this was so.

Application for leave

13                  In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal stating three grounds of appeal:

1.      ‘The decision involved an important exercise of the power conferred by the Migration Act and Regulation.

2.      The Tribunal failed to give natural justice.

3.      The making of a finding which is biased.’

14                  In his affidavit attached to the application for leave to appeal also filed 31 March 2006 the applicant deposed the following:

1.      ‘I have been subject of surveillance and investigation because I was a Falun Gong Practitioner.

2.      I was prosecuted by the Chinese government.

3.      I really face a risk of being jailed if I return to my original country – PR China.’

15                  The applicant was self-represented at the hearing. However, as the applicant does not speak English an interpreter was provided by the Court for the hearing. At the hearing the applicant made a number of submissions:

·         the applicant does not understand English and did not understand the proceedings in the Federal Magistrates Court, or the reasons of Federal Magistrate

·         the applicant was confused as to the role of the legal advisor in the Federal Magistrates Court proceedings

·         the applicant left China in order to escape and came to Australia in search of a free society

·         the applicant has received a number of letters from the Federal Court of Australia and the Tribunal in relation to his claim but does not quite understand the content of the letters

·         the applicant is afraid that he will be persecuted if he has to return to China and is unable to sleep at night.

16                  At the hearing, counsel for the first respondent made oral submissions in which, primarily for the applicant’s benefit, he addressed the principles applicable to the grant of leave to appeal. Those submissions were:

·         the applicant needs to demonstrate two things, first that there is sufficient doubt in the Federal Magistrates judgment to justify it being reconsidered by this Court, and second that substantial injustice would result if leave were refused assuming the Federal Magistrates decision to be wrong

·         none of the applicant’s grounds of appeal were properly particularised

·         in the circumstances there was really no other decision reasonably open to the Tribunal or the Federal Magistrate and so there can really be no doubt in the Federal Magistrates reasons

·         the applicant’s claim would ultimately fail on appeal so no substantial injustice would result by this court refusing leave.

17                  Further, the first respondent in written submissions cited Niemann v Electronic Industries Ltd [1978] VR 431 as authority that the following principles are applicable to the grant of leave to appeal:

(a)    whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and

(b)   whether substantial injustice would result if leave were refused supposing the decision to be wrong.

18                  In respect of the principles in Niemann the first respondent submitted the following:

·         the application does not create any doubt as to the correctness of the judgment of Driver FM, much less sufficient doubt, to warrant reconsideration by this Court

·         no error is raised as to the approach or findings of Driver FM

·         Driver FM was plainly correct to dismiss the application for the reasons he did

·         the Court ought not to interfere with the exercise of judicial discretion in the making of an interlocutory decision unless it is satisfied that there has been some error of law or logic or some unfairness which is apparent on the face of the reasons or implicit in the result

·         no substantial injustice would result because there is no error in the Tribunal’s decision.

19                  That these principles are applicable in this case is clear from a number of recent judgments of this Court (see Besanko J in SZGCH v Minister for Immigration & Multicultural Affairs [2006] FCA 809 at par 14; Sundberg J in MZWZC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 544 at par 8).

Decision

20                  On the facts of this case, it was reasonable for the Tribunal to make a decision notwithstanding that the applicant did not appear before it: s 426A of the Act. It appears that the Tribunal went to some lengths to contact the applicant and advise him of the time and place of the hearing. The only explanation provided to the learned Federal Magistrate as to his failure to attend was that the applicant did not understand the letters from the Tribunal informing him of the hearing.

21                  Without the assistance of any further information which could support the applicant’s claim, it was reasonably open to the Tribunal to form the view that the applicant did not have a well-founded fear of persecution for a Refugees Convention reason if he returned to China.

22                  I note that the applicant claimed that the Tribunal failed to give him natural justice, and that its findings against him were biased. No evidence has been produced to support either of these contentions.

23                  I have considered the decision of Driver FM and I am satisfied that no error is raised as to finding of the learned Federal Magistrate. His Honour was correct to dismiss the application for the reason that it did not support an arguable case of jurisdictional error. It is clear that Driver FM gave the applicant an opportunity to state grounds of appeal which went to the issue of jurisdictional error. The applicant failed to state any grounds which advanced a claim of jurisdiction error.

24                  In all the circumstances the decision of the Federal Magistrate is not attended by sufficient doubt to warrant it being reconsidered by the Full Court.

Orders

1.                  The application for leave to appeal is refused.

2.                  The applicant pay the first respondent’s costs.

Associate:

Dated: 18 August 2006