FEDERAL COURT OF AUSTRALIA

SZLUM v Minister for Immigration and Citizenship [2008] FCA 1671  

SZLUM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1195 of 2008

BESANKO J

12 NOVEMBER 2008

ADELAIDE VIA VIDEO LINK WITH SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal from the first order made by the Federal Magistrates Court on 22 July 2008 be dismissed.

2.                  The applicant pay the first respondent’s costs of and incidental to the application for leave to appeal, fixed in the sum of $1,400.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from an order of the Federal Magistrates Court made on 22 July 2008. The orders made by a federal magistrate on that day were as follows:

1.         The applicant’s application under r 16.05(2)(a) to set aside orders made on 23 May 2008 is refused.

2.                  The applicant must pay the first respondent’s costs in the sum of $500.

(SZLUM v Minister for Immigration & Citizenship [2008] FMCA 1073).

2                     The applicant seeks leave to appeal from the first order.

3                     The applicant is a citizen of the People’s Republic of China. She arrived in Australia on 28 June 2007 and, shortly after her arrival, she applied for a Protection (Class XA) visa. The applicant claimed that while in China she attended house church gatherings at a neighbour’s home. She claimed that she became familiar with the gospel and the teachings in the Bible. She claimed that in December 2005 she went to her neighbour’s home. The police arrived and the applicant was taken into custody. She was released the following day. Her neighbour was sent to a labour reform camp for six months. The applicant claimed that in January 2005 she was dismissed from her employment because of her Christian beliefs.  The applicant said that she would not give up her Christian beliefs and she is concerned that if she returns to China she will be detained. She is concerned that she will be living in fear and may be taken into custody at any time by the local police and residential committee.

4                     On 17 August 2007 a delegate of the Minister for Immigration and Citizenship refused the applicant’s application for a protection visa. The applicant applied to the Refugee Review Tribunal for a review of that decision.

5                     The Tribunal wrote to the applicant advising her that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 2 November 2007. The applicant did not attend the hearing listed on that day. The Tribunal member decided that her explanation for her failure to attend was unsatisfactory, and it decided to proceed under s 426A of the Migration Act 1958 (Cth) (“Migration Act”) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

6                     The Tribunal member said that it was not satisfied of the applicant’s claims, “[w]ithout further details, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing and test the evidence”. She said that she was not satisfied that the applicant had suffered any Convention-related harm, or that there was a real chance of such harm occurring to the applicant in the reasonably foreseeable future. The Tribunal member said that, in those circumstances, she was not satisfied that the applicant had a well-founded fear of persecution for a Convention-related reason. She affirmed the delegate’s decision.

7                     The applicant applied to the Federal Magistrates Court for constitutional writs in relation to the Tribunal’s decision. I will refer to that application as the principal proceeding. The principal proceeding was listed for a final hearing on 23 May 2008. The applicant did not appear at that time and the Federal Magistrates Court made an order dismissing the principal proceeding for want of prosecution: SZLUM v Minister for Immigration & Citizenship [2008] FMCA 719. The applicant made an application to have the principal proceeding reinstated (see r 16.05 of the Federal Magistrates Court Rules 2001 (Cth)). The application was heard by a federal magistrate on 22 July 2008. The federal magistrate was not satisfied that it was appropriate to make an order reinstating the principal proceeding, and he refused the application. The application for leave to appeal before this Court relates to that order. The order made by the federal magistrate is an interlocutory judgment and leave to appeal is required: Federal Court of Australia Act 1976 (Cth) s 24(1A).

8                     The federal magistrate refused the application to reinstate the principal proceeding on two grounds. First, he found that the applicant had not presented acceptable evidence explaining her absence from the hearing so as to justify the setting aside of the order. Secondly, he said that he considered the proceeding to have no reasonable prospect of success and, indeed, to be hopeless. He said that he could discern no reasonably arguable case of jurisdictional error in relation to the Tribunal’s decision to proceed under s 426A(1) of the Migration Act or its decision to affirm the decision of the delegate.

9                     The applicant did not appear on the hearing of her application for leave to appeal. In my opinion, she was given adequate notice of the hearing and, in those circumstances, I proceeded to hear the application in her absence.

10                  The test the Court applies in considering whether to grant leave to appeal is well-known and need not be restated: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

11                  The decision under challenge involved the exercise of a discretion by the federal magistrate. He considered two matters to be of primary significance, namely, the applicant’s explanation for her failure to appear before the Federal Magistrates Court on 23 May 2008 and the prospects of success of the principal proceeding. The federal magistrate did not err in approaching the exercise of his discretion by reference to those considerations. Nor did he err in the conclusions he reached on the evidence before him that the applicant’s explanation for her failure to appear was unsatisfactory and that the principal proceeding had no prospect of success. In my opinion, there is no reason to think the federal magistrate erred in the way in which he exercised his discretion and his decision is not attended with sufficient doubt to warrant a grant of leave to appeal.

Conclusion

12                  The application for leave to appeal from the first order of the Federal Magistrates Court made on 22 July 2008 is dismissed. The applicant must pay the first respondent’s costs of and incidental to the application.

Associate:

Dated:         12 November 2008