SZGCH v Minister for Immigration and Multicultural Affairs [2006] FCA 809 (30 June 2006)

MIGRATION – application for leave to appeal against interlocutory judgment of Federal Magistrate – Magistrate made orders dismissing application for review of decision of Refugee Review Tribunal affirming decision of Minister’s delegate to refuse applicant protection visa – first, on ground that applicant failed to comply with order of court – Federal Magistrates Court Rules, r 13.03(2)(b) – secondly, on ground that proceeding or claim for relief disclosed no cause of action, was frivolous or vexatious, or abuse of process – Federal Magistrates Court Rules, r 13.10 – held, no arguable case of jurisdictional error – decision of Magistrate not attended with sufficient doubt to warrant reconsideration – application for leave to appeal refused.

Federal Court of Australia Act 1976 (Cth) ss 24(1), 24(1A), 25(2)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 425, 425A, 426A
Federal Magistrates Court Rules 2001 rr 13.03, 13.09, 13.10

Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 referred to
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to

SZGCH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 2625 OF 2005

BESANKO J
30 JUNE 2006
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	NSD 2625 OF 2005

BETWEEN:	SZGCH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BESANKO J
DATE OF ORDER:	30 JUNE 2006
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:
1. The title of the first respondent is amended by deleting the words ‘and Indigenous’.
2. The application for leave to appeal is refused.
3. The applicant is to pay the first respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	NSD 2625 OF 2005

BETWEEN:	SZGCH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BESANKO J
DATE:	30 JUNE 2006
PLACE:	ADELAIDE (HEARD IN SYDNEY)

1 This is an application for leave to appeal from an interlocutory judgment of a Federal Magistrate. The application is made under s 24(1) and (1A) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court of Australia Act’). The applicant purported to file a notice of appeal, but I am prepared to treat that document as an application for leave to appeal.

2 The applicant made an application under s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) to the Federal Magistrates Court seeking an order that a decision of the Refugee Review Tribunal (‘the Tribunal’) be set aside. The applicant had sought a review by the Tribunal of a decision of a delegate of the first respondent to refuse him a protection (Class XA) visa. The Tribunal had decided to affirm the decision of the delegate.

3 The application under s 39B of the Judiciary Act was filed on 18 April 2005. It was in the most general terms in the sense that it did not clearly identify the errors said to have been made by the Tribunal. The application was listed for directions before Registrar McIllhatton on 3 May 2005. On that occasion the applicant attended at court and was assisted by an interpreter. An order was made that by 8 July 2005 the applicant file and serve an amended application giving complete particulars of each ground of review relied upon. The applicant did not file and serve an amended application in accordance with the order.

4 On 21 September 2005 the respondent issued an application under r 13.09 of the Federal Magistrates Court Rules 2001 seeking an order that the application be dismissed pursuant to r 13.03(2)(b) because of the applicant’s default in complying with the order made on 3 May 2005, and, further, or in the alternative, an order that the application be dismissed under r 13.10 because no reasonable cause of action was disclosed in relation to the proceeding or claim for relief, or because the proceeding or claim for relief was frivolous or vexatious, or because the proceeding or claim for relief was an abuse of the process of the Court.

5 The respondent’s application came on for hearing before a Federal Magistrate on 7 December 2005. The Magistrate made the following orders:

7 The applicant was born on 1 December 1963 and is a citizen of the People’s Republic of China. He arrived in Australia on 24 October 2004. On 2 November 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 November 2004 a delegate of the Minister refused to grant a protection visa.

8 On 30 December 2004 the applicant applied to the Tribunal for a review of the delegate’s decision, and on 17 January 2005 the applicant was invited to attend a hearing before the Tribunal on 23 February 2005. He was told that, without more, the Tribunal could not make a decision in his favour on the basis of the information before it. The applicant did not respond to the hearing invitation by 17 February 2005, and the Tribunal proceeded to deal with his application under s 426A of the Migration Act 1958 (Cth). On 24 February 2005 the Tribunal decided to affirm the delegate’s decision and it handed down that decision on 17 May 2005.

9 The applicant claimed that he had a well-founded fear of persecution by reason of his membership of a particular social group or political or religious opinions. This arose, he said, because of his membership of Falun Gong. The applicant claimed that he was the leader of Falun Gong in Tianjin and that he had been given many warnings by the local police. The applicant claimed that in December 1999 he was placed in detention for a period of one month and that in December 2002, after taking part in a demonstration against the local government, he was placed in detention for two months and forced to attend re-education classes.

10 The Tribunal was not satisfied on the information presented to it that the applicant had a genuine fear of persecution or that there was a real chance that he would be persecuted. The Tribunal referred to the information before it as ‘very limited, vague and unreliable’.

11 Before the Magistrate, the applicant claimed that he did not appear before the Tribunal because he could not read the letter of invitation and that he hoped to have another opportunity to attend before the Tribunal so that he could explain his position. The Magistrate said that even if he accepted the applicant’s statement as true, this would not affect the Tribunal’s decision or create a jurisdictional error. The Magistrate said that there may be an argument that where an applicant is not represented by a migration agent, a letter inviting the applicant to a hearing should be addressed to him in a language that he can understand, but, equally, it might be said that a person applying for refugee status who receives an important-looking letter from the Tribunal to which he has made an application has his own responsibility to ensure that he understands what the letter says.

12 The Magistrate said that he had read the papers and that he was satisfied that there were no reasonable prospects of success in the applicant’s claim that the Tribunal committed a jurisdictional error in the manner in which it reached its conclusions.

13 The Magistrate said that he was also satisfied that the applicant failed to comply with an order of the Court, being an order which would have given the applicant the opportunity to articulate any jurisdictional error. The Magistrate noted that the applicant attended before the Registrar and that he was assisted by an interpreter. The applicant signed the orders made by the Registrar and, said the Magistrate, could therefore be taken to have been aware of the requirement to file and serve an amended application by 8 July 2005.

14 In order to obtain leave to appeal, the applicant must show that the decision of the Magistrate is attended with sufficient doubt to warrant its reconsideration by this Court and that substantial injustice would result if leave were refused supposing the decision to be wrong. Leave may be granted more readily where substantive rights are at issue, as distinct from cases which involve a point of practice or procedure: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.

15 The Tribunal complied with the requirements of the Migration Act 1958 (Cth), ss 425, 425A, 426A and it was entitled to proceed to make its decision. It was entitled to conclude that the material before it was not sufficient to make out the applicant’s claim. There is no arguable case of jurisdictional error and the decision of the Magistrate is not attended with sufficient doubt to warrant its reconsideration by this Court. In those circumstances, leave to appeal must be refused.

16 The application for leave to appeal is refused. The applicant must pay the first respondent’s costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Applicant:	The applicant appeared in person.

Counsel for the Respondent:	Ms S Zarucki

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	8 May 2006

Date of Judgment:	30 June 2006