SZJWV v Minister for Immigration and Citizenship [2007] FCA 1299 (7 August 2007)

Last Updated: 5 September 2007

FEDERAL COURT OF AUSTRALIA

SZJWV v Minister for Immigration and Citizenship [2007] FCA 1299

SZJWV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD919 OF 2007



EMMETT J
7 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD919 OF 2007

BETWEEN:	SZJWV Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	7 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first respondent’s costs in the sum of $900.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD919 OF 2007

BETWEEN:	SZJWV Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE:	7 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of the Peoples Republic of China, who arrived in Australia on 11 July 2006. On 13 July 2006 he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). A delegate of the first respondent, the Minister for Immigration and Citizenship, refused to grant a visa on 1 September 2006. On 6 October 2006, the applicant then applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. On 3 November 2006 the Tribunal affirmed the delegate’s decision not to grant a protection visa.

2 On 18 December 2006 the applicant commenced a proceeding in the Federal Magistrates Court for judicial review of the Tribunal’s decision. The grounds were baldly stated without any particulars as follows.

(1) A breach of the rules of natural justice occurred in connection with the making of the decision.

(2) The decision involved an error of law.

(3) The Tribunal could not make the decision without further evidence or information.

3 On 23 April 2007 the Federal Magistrates Court, for reasons given on that day, dismissed the application with costs. On 23 May 2007 the applicant filed in this Court an application for leave to appeal from the orders of the Federal Magistrates Court. The application was supported by an affidavit sworn on that day, in which the applicant asserted that he "missed the time for lodging for notice of appeal because [he] did not receive the order from Federal Magistrates Court". The grounds stated in the notice of appeal are the same as those stated in the application to the Federal Magistrates Court. That is to say, they refer to jurisdictional error by the Tribunal and make no reference to any error on the part of the Federal Magistrates Court.

4 When the matter was called on for hearing today, there was no appearance for the applicant. I have seen evidence that he was notified of the hearing date by letter from the Minister’s solicitors. The Minister has therefore asked that the proceeding be dismissed. I propose to accede to that application but, having regard to the fact that the applicant has appeared without legal representation, I have considered the Tribunal’s decision and the reasons of the Federal Magistrates Court.

5 The Tribunal recorded that the applicant appeared before the Tribunal to give evidence and present arguments. The tribunal summarised the applicant’s evidence in its reasons. The applicant claimed that he feared persecution in China by reason of his practising Falun Gong. The Tribunal accepts that Falun Gong may be considered to be a religion and that those practising Falun Gong may constitute a particular social group. The Tribunal also accepted that Falun Gong practitioners face persecution in China and that such persecution is for a Convention reason. However, the Tribunal was not satisfied that the applicant was involved with Falun Gong, as he claimed.

6 The Tribunal found the applicant to be an untruthful witness. The Tribunal considered that the applicant’s evidence lacked credibility and consistency. He was unable to provide any details with respect to many fundamental aspects of his claims. Accordingly, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. The Federal Magistrates Court recorded, in its reasons, that on 8 February 2007 it gave directions for the filing of additional material by the applicant. Nothing further was filed. The primary judge set the matter down for a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules) as to whether there was an arguable case demonstrated by the application.

7 The Federal Magistrates Court recorded that the applicant was afforded the benefit of pro bono legal advice but that the applicant did not attend an interview with Mr McCauley of counsel, who volunteered to give him assistance. The applicant was unable to expand in any meaningful way on the grounds of review in his application to the Federal Magistrates Court. The primary judge considered that the first two grounds were meaningless in the absence of particulars and that the third ground was hopeless. His Honour considered that the Tribunal was entitled to make the decision that it did on the basis of the material available to it and concluded that the applicant had failed to identify any arguable case of jurisdictional error. On that basis, his Honour dismissed the application pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules.

8 Even if this proceeding were not to be treated as an interlocutory appeal, in the sense that the orders of the Federal Magistrates Court are final in effect, it is clear that there is no possible way in which this application could succeed on the papers as they presently stand. For those reasons, I have no hesitation in acceding to the Minister’s application for dismissal of the proceeding.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 30 August 2007

The Applicant did not appear:
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	7 August 2007
Date of Judgment:	7 August 2007