FEDERAL COURT OF AUSTRALIA

SZLKH v Minister for Immigration and Citizenship [2008] FCA 745

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

Federal Magistrates Act 1999 (Cth) s 13

Federal Court Rules O 62 r 4(2)(c)

Federal Magistrates Court Rules 2001 r 44.12(1)(a) 

Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

SZLKH v Minister for Immigration & Citizenship & Anor [2007] FMCA 2140

SZLKH and SZLKI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 25 of 2008

MCKERRACHER J

15 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused. 

2.                  The applicants are to pay the costs of the first respondent fixed at $805 pursuant to O 62 r 4(2)(c) of the Federal Court Rules. 

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

REASONS FOR JUDGMENT

Revised from Transcript

1                     This is an application for leave to appeal from the judgment of Federal Magistrate Smith in SZLKH v Minister for Immigration and Citizenship and Another [2007] FMCA 2140 delivered on 18 December 2007.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 4 September 2007 declining to grant a protection visa to the applicant.

2                     The applicants are husband and wife.  They are citizens of the Hong Kong Special Administrative Region of the People’s Republic of China (Hong Kong SAR).  The applicant husband (hereafter ‘the applicant’) claimed to fear persecution by reason of his anti-government and pro-democracy views.  He also suggested that he had been a member of an independent trade union.  The Tribunal, however, did not accept that the applicant had a well‑founded fear of Convention related persecution in Hong Kong SAR within the meaning of the Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967). 

3                     While the Tribunal did accept that the applicant viewed his economic prospects in Australia as superior, it did not accept that the applicant’s concerns about the economic, political and security situation in Hong Kong SAR could support a well-founded fear of harm.

4                     The Tribunal further found that the applicant’s account of his alleged union activities was edged with speculation and the Tribunal did not accept the claim.  Accordingly, it dismissed the application for review and the applicant took the matter before the Federal Magistrate. 

5                     Before the Federal Magistrate, the applicant argued that the Tribunal had committed jurisdictional error as it failed to accord him and his wife procedural fairness.  No particulars whatsoever were provided in support of those assertions.  The Federal Magistrate found that the generality of the grounds had not been developed by any argument put to the court by or on behalf of the applicants.  The Federal Magistrate could find no arguable substance in them and accordingly dismissed the application for review under r 44(12)((1)(a) of the Federal Magistrates Court Rules 2001.

6                     In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which the applicant claims that the Federal Magistrate’s judgment was made in breach of s 13 of the Federal Magistrates Act 1999 (Cth) in that his Honour did not have power to make a decision or give the judgment in chambers and without an oral hearing. 

7                     In my view those grounds are substantially misconceived and leaMCKERRACHER J

15 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused. 

2.                  The applicants are to pay the costs of the first respondent fixed at $805 pursuant to O 62 r 4(2)(c) of the Federal Court Rules. 

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

REASONS FOR JUDGMENT

Revised from Transcript

1                     This is an application for leave to appeal from the judgment of Federal Magistrate Smith in SZLKH v Minister for Immigration and Citizenship and Another [2007] FMCA 2140 delivered on 18 December 2007.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 4 September 2007 declining to grant a protection visa to the applicant.

2                     The applicants are husband and wife.  They are citizens of the Hong Kong Special Administrative Region of the People’s Republic of China (Hong Kong SAR).  The applicant husband (hereafter ‘the applicant’) claimed to fear persecution by reason of his anti-government and pro-democracy views.  He also suggested that he had been a member of an independent trade union.  The Tribunal, however, did not accept that the applicant had a well‑founded fear of Convention related persecution in Hong Kong SAR within the meaning of the Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967). 

3                     While the Tribunal did accept that the applicant viewed his economic prospects in Australia as superior, it did not accept that the applicant’s concerns about the economic, political and security situation in Hong Kong SAR could support a well-founded fear of harm.

4                     The Tribunal further found that the applicant’s account of his alleged union activities was edged with speculation and the Tribunal did not accept the claim.  Accordingly, it dismissed the application for review and the applicant took the matter before the Federal Magistrate. 

5                     Before the Federal Magistrate, the applicant argued that the Tribunal had committed jurisdictional error as it failed to accord him and his wife procedural fairness.  No particulars whatsoever were provided in support of those assertions.  The Federal Magistrate found that the generality of the grounds had not been developed by any argument put to the court by or on behalf of the applicants.  The Federal Magistrate could find no arguable substance in them and accordingly dismissed the application for review under r 44(12)((1)(a) of the Federal Magistrates Court Rules 2001.

6                     In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which the applicant claims that the Federal Magistrate’s judgment was made in breach of s 13 of the Federal Magistrates Act 1999 (Cth) in that his Honour did not have power to make a decision or give the judgment in chambers and without an oral hearing. 

7                     In my view those grounds are substantially misconceived and leave to appeal should not be granted.  The test for whether leave to appeal is granted or refused is described in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 where the Full Court said at 398:

The question was raised whether, on an application for leave to appeal, the court should regard itself as bound to apply a formula said to have been laid down in Niemann v. Electronic Industries Ltd (1978) VR 431. In Sharp v Deputy Federal Commissioner of Taxation (Cth) (1988) 88 ATC 4184 at 4186 (and see also Merman Pty Ltd v. Cockburn Cement Limited (1989) ATPR 49951 at 49954; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, French J, 15 January 1991)) Burchett J stated the "major consideration(s)", to be applied by the court upon an application for leave, for which Niemann (supra) is authority. The first test, which relates to the prospects of the proposed appeal, is "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court." The second

"is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. …

In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations."

In our opinion, the major considerations to be derived from Niemann do provide an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought. If differently constituted courts are to give consistent rulings, it is necessary that they be guided by relevant principles. There is a considerable body of authority which supports the approach taken in Niemann. But we do not understand the judges who decided Niemann to have laid down any rigid rules that might destroy a court's discretion in all cases but those falling within them. That, so far as this court is concerned, would be contrary to the unqualified terms of s 24(1A) of the Federal Court of Australia Act 1976 which confer on the court an unfettered discretion.

8                     On application of the principles set out in that authority, it is clear to me that there is no prospect of success in the draft grounds advanced by the applicants.

9                     Specifically, the applicants have not demonstrated that the decision of the learned Federal Magistrate was attended with any doubt, let alone sufficient doubt to warrant its reconsideration.  The applicants have not demonstrated any substantial injustice which would result if leave were refused, nor that the decision in any way was wrong. 

10                  The ground stated is misconceived at law because there was, in fact, a hearing before the Federal Magistrate which was conducted in open court and the extempore judgment was delivered in open court.  There was no breach of s 13 of the Federal Magistrate Act 1999 (Cth) and the draft notice of appeal is without merit. 

11                  I also note that the ground of application to the Federal Magistrates Court failed to identify with any particularity jurisdictional error in any way in the Tribunal’s decision.  The basis for the decision to affirm the decision of the first respondent’s delegate to refuse the applicants protection visas was that the applicants’ concerns about the general political security and economic conditions in Hong Kong SAR did not, without more, establish persecution as they did not entail discriminatory conduct.

12                  Secondly, the Tribunal did not accept the applicant’s claim to be a trade unionist who had actively campaigned for labour rights and had been denied employment because of his activities.  The Tribunal concluded that the applicants were not persons to whom Australia has protection obligations. 

13                  Those findings were open to the Tribunal.  No jurisdictional error or other error has been demonstrated.  Accordingly, I would have, in any event, subject to hearing from the applicant, been inclined to dismiss this application with costs. 

14                  As it transpires, the applicants did not appear this morning for the hearing and counsel for the first respondent has sought a dismissal of the application on the grounds of non-appearance pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).  In my view, such an order is appropriate.  Accordingly, the application will be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

15                  I also order that the applicants pay the costs of the first respondent fixed in the sum of $805 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.

Associate:

Dated:         22 May 2008