FEDERAL COURT OF AUSTRALIA

SZIMX v Minister for Immigration and Citizenship [2007] FCA 1110

SZIMX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 698 OF 2007

RYAN J

30 JULY 2007

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal be dismissed.

2.         The first respondent’s costs of the application to this Court be his costs in any application to the Federal Magistrates Court under r 16.05 of the Rules of this Court.  In default of any such application being made within 28 days of this day, the applicant pay the first respondent’s costs of and incidental to the application dated 20 April 2007, such costs to be taxed in default of agreement.

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 filed on 20 April 2007 for leave to appeal from orders made by Federal Magistrate Raphael on 28 March 2007; see SZIMX v Minister for Immigration and Citizenship [2007] FMCA 584.

2                     The application before the learned Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 27 January 2006 and handed down on 16 February 2006.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs as he was then named (“the Minister”), to refuse to grant a protection visa to the application.  That refusal occurred on 10 November 2005.

3                     By way of background, the applicant is a citizen of Indonesia who arrived in Australia on 13 August 2005.  On 6 September 2005 he applied for a protection visa.  The applicant claimed to fear persecution from native Indonesians because of his Chinese ethnicity.  The applicant also claimed that his home and shop had been looted and burned by native Indonesians and that his family had suffered various difficulties.

4                     On 10 November 2005, a delegate of the first respondent refused the application for a protection visa and, on 14 December 2005, the applicant applied to the Tribunal for a review of the delegate’s decision.  His application was supported by a written statement which was primarily in the same terms as the statement that accompanied his protection visa application. 

5                     On 22 December 2005 the Tribunal sent a letter by registered post to the applicant advising that it had considered all the material before it but was unable to make a decision in his favour on that information alone and advising him to attend a hearing to be held on 15 January 2006.  The applicant failed to appear on the scheduled day and time and, pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal made its decision on 27 January 2006 without taking further action to enable the applicant to appear before it.

6                     The Tribunal handed down its decision on 16 February 2006 and sent a letter to the applicant on 16 February 2006 notifying him of that decision.  The Tribunal did not accept the applicant’s claims as it considered them to be unsubstantiated, brief and vague.  The Tribunal found that they amounted to mere assertions that could not be tested as the applicant had not attended the hearing on 25 January 2006. The written claims also appeared to the Tribunal to have been borrowed from statements prepared for other applicants raising doubt as to the general credibility of the applicant’s claims.  Additionally, having regard to country information, the Tribunal was not satisfied that there was a real chance that the applicant would suffer persecution by reason of his Chinese ethnicity if he were to return to Indonesia. 

7                     On 15 March 2006, the applicant applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal dated 16 February 2006.  The application contained three unparticularised grounds of review, that the Tribunal had failed to give the applicant natural justice, that procedures which were required to be observed had not been observed and that the decision had not taken account of the danger to the applicant if he were to return to Indonesia.  The application was accompanied by an affidavit sworn by the applicant on 14 March 2006. 

8                     On 11 April 2006, the applicant attended a directions hearing at which orders were made by a Registrar requiring him to file an amended application by 4 July 2006 and directing that the matter be listed for final hearing on 28 March 2007.  The applicant did not file an amended application and failed to attend the hearing before Raphael FM on 28 March 2007.  Accordingly, the learned Federal Magistrate ordered that the application be dismissed pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 and that the applicant pay the Minister’s costs fixed in the sum of $2750.

9                     The applicant has filed an application to this Court for leave to appeal together with an affidavit sworn by himself on 17 April 2007 in support of his application and a draft notice of appeal.  In his application for leave to appeal the applicant has also applied for an order that compliance with O 52 r 5(2) be dispensed with.  The applicant asserts in his affidavit in support of his application for leave to appeal that;

‘1.        The Tribunal breached the rules of natural justice and/or procedural fairness in connection with the making of the decision.

2.         I were not given an opportunity to comment on the information forming the basis of the Tribunal’s decision.’

10                  The grounds of appeal listed in the draft notice of appeal which accompanied his application for leave to appeal are;

 ‘1.        The Second Respondent failed to give natural justice

2.         Procedures that were required by law to be observed in connection with the making of the decision were not observed

3.         The making of the decision is biased.’

11                  In my view, the present application for leave to appeal is misconceived.  It is clear that the orders of Federal Magistrate Raphael amounted, in effect, to a summary dismissal of the applicant’s appeal and were interlocutory in nature; see Rana v The University of South Australia (2004) 136 FCR 344.  In the ordinary course, therefore, the applicant would require leave to appeal for which he would have to show that, in all the circumstances, the decision, in this case that of Federal Magistrate Raphael of 28 March 2907 is attended by sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would result if leave to appeal were refused, supposing the decision below to be wrong;  see Décor Corporation v Dart Industries Inc (1991) 33 FCR 397, where a Full Court of this Court effectively applied the test formulated by a Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Limited [1978] VR 431.  I am prepared to assume that, if the decision of Raphael FM were wrong, the applicant would suffer a substantial injustice as a result of the striking out of his application for review of the Tribunal’s decision.

12                  On the same assumption, the probability of a substantial injustice would, in the circumstances, warrant the grant of an extension of time pursuant to O 52 r 10(2A) of the Rules of this Court.  However, I can detect no error in his Honour’s exercise of the discretion conferred on him by r 13.03A of the Federal Magistrates Court Rules 2001, which provides;

‘If a party to a proceeding is absent from a hearing (including a first court date), the Court may do one or more of the following:

(a)       adjourn the hearing to a specific date or generally;

(b)       order that there is not to be any hearing unless:

(i)         the proceeding is again set down for hearing; or

(ii)        any other steps that the Court directs are taken;

(c)        if the party absent is an applicant - dismiss the application;

(d)       if the party absent is a party who has made an interlocutory application or a cross-claim - dismiss the interlocutory application or cross-claim;

(e)        proceed with the hearing generally or in relation to any claim for relief in the proceeding.’

13                  In this case, the learned Federal Magistrate exercised his discretion by taking the course indicated by paragraph (c) of that rule.  In the circumstances known to him at the time there is nothing to suggest that his discretion miscarried.  In the events which happened, an application might have been made under r 16.05 of the Federal Magistrates Court Rules to set aside the orders made by the Raphael FM.  That sub-rule provides;

‘(1)      The Court may vary or set aside its judgment or order before it has been entered.

(2)       The Court may vary or set aside its judgment or order after it has been entered if:

(a)        the order is made in the absence of a party; or

(b)        the order is obtained by fraud; or

(c)        the order is interlocutory; or

(d)        the order is an injunction or for the appointment of a receiver; or

(e)        the order does not reflect the intention of the Court; or

(f)        the party in whose favour the order is made consents.

(3)       This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.’

14                  It is clear that, in the circumstances of this case, an application could have been made and, indeed, could still be made, under sub-rule (2)(a) or (c) of that rule.  Accordingly, I agree with the observations of Young J in MZWXC v the Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 where his Honour said at [9];

‘The appropriate course for the applicant to adopt would have been to apply to have the decision of O’Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this Court.  It has been doubted, in any event, whether this Court can entertain an appeal from a decision to dismiss an application for want of appearance: see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 (“MZWIK”) and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505.

15                  Young J continued, at [12]-[13];

‘12       Rather than proceeding under s 25(2B)(bb)(ii), I propose to adopt the course taken by Sundberg J in MZWIK and consider whether there is sufficient merit in the appeal to justify the grant of leave.  This seems preferable where the course the applicant should have taken is to make an application in the Federal Magistrates Court under rule 16.05(2). 

13        I cannot see any basis for impugning Federal Magistrate O’Dywer’s decision.  It is clear that his Honour has the power to dismiss an application for non-appearance of an applicant and nothing in the notice of appeal evinces any irregularity in the exercise of that power.  The applicant’s non-appearance before Federal Magistrate O’Dwyer remains unexplained.  In these circumstances the appeal has no prospect of success.’

16                  In my view, those observations can be paraphrased to apply with equal force to the present case.  For these reasons, I consider that the application for leave to appeal should be refused.  In the course of the oral hearing of his application this afternoon, the applicant indicated that he had been prevented from appearing before the Federal Magistrates Court because of his involvement in a motor car accident.  He further claimed that he had advised his migration agent to that effect and had relied on the agent to explain to the Magistrates Court the reason for his non-appearance.  It does not appear that any attempt was made to convey that to the Magistrates Court, so that there is nothing on the face of the record to suggest that Raphael FM’s exercise of discretion miscarried.

17                  In the circumstances, I consider that an appropriate order as to costs is that the Minister’s costs of the application to this Court be his costs in any application to the Federal Magistrates Court under r 16.05 of the Rules of that Court provided that such an application be made within 28 days of this day.  In default of such an application to the Federal Magistrates Court, the applicant should pay the Minister’s costs of the proceeding in this Court. 

Associate:

Dated:         2 August 2007