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Federal Court of Australia |
Last Updated: 16 February 2007
FEDERAL COURT OF AUSTRALIA
SZGYN v Minister for Immigration and Citizenship [2007] FCA 140
SZGYN
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 2103 OF 2006
BESANKO
J
16 FEBRUARY 2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The application for leave to appeal be refused.
2. The applicant pay the first respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZGYN
Applicant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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BESANKO J
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DATE:
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16 FEBRUARY 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 This is a purported appeal from orders made by a Federal Magistrate. The applicant applied for constitutional writs in respect of a decision of the Refugee Review Tribunal. The first respondent applied for an order for summary dismissal of the application under r 13.10 of the Federal Magistrates Court Rules 2001 on the basis that no reasonable cause of action was disclosed or the application or claim for relief was frivolous or vexatious, or an abuse of process. The Magistrate dismissed the applicant’s application. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse the applicant’s application for a protection visa. The order for summary dismissal is an interlocutory one and leave to appeal is required. I am prepared to treat the notice of appeal as an application for leave to appeal.
2 The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 14 November 2004. On 10 December 2004 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (‘the Act’). On 3 February 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the applicant’s application for a protection visa. On 4 March 2005 the applicant applied to the Tribunal for a review of that decision.
3 On 27 April 2005 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing on 17 June 2005, and it advised the applicant that it would only change this hearing for good reasons. The Tribunal advised the applicant that if he thought he might be unable to attend the hearing he should contact the Tribunal immediately and that if he did not attend the hearing, and the Tribunal did not postpone the hearing, the Tribunal could make a decision on his case without further notice. No response was received and the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. The Tribunal member decided that in those circumstances, and pursuant to s 426A of the Act, he would proceed to make his decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
4 The Tribunal member referred to the claims made in the applicant’s application for a protection visa. The applicant’s case is that he is a 42-year-old married man from Heilongjiang City in China. He states that he speaks, reads and writes Mandarin. He lists his ethnic group as Chinese and states that he has no religion. He states that his occupation prior to his arrival in Australia was that of a manager. He has received nine years of education and states that from 1994 until 2004 he worked as a manager.
5 The applicant’s case is that he is Falun Gong practitioner and that he has practised Falun Gong for a number of years. He makes the following assertions:
‘... however, in the end of 1999, Falun Dafa was officially regarded as an illegal organisation. The police went everywhere to arrest Falun Dafa practitioners. All kinds of our activities had to be arranged and held secretly. Our human freedom was completely deprived. I have been sent to Falun Gong centre for many times. Last time I was told that I would be sentenced to about ten years into prison if I were found practice Falun Gong. I do not think I can give up it because there is nothing wrong with Falun Dafa. Thus I decided to go out of my original country PRC China. On 14 November 2004 I arrived into Australia. I know that Australia is one of the most democratic countries in the world. Australian government always protects their people and look after their people so I apply to Australian government to protect me as a refugee.’
6 The Tribunal member said that there were a number of issues upon which he required a good deal more detailed evidence before he could be satisfied that the applicant was in genuine fear of persecution and that there was a real chance that he would be persecuted. He said that on the ‘very limited, vague and unreliable evidence available’, he could not be satisfied that the applicant’s claim that he participated in Falun Gong activities in China, that he was threatened with imprisonment by the Chinese authorities and that he fears arrest on his return to China were correct. The Tribunal member said that he was not satisfied on the evidence before him that the applicant had a well-founded fear of persecution within the meaning of the Convention.
7 The applicant issued his application for constitutional writs in the Federal Magistrates Court on 12 August 2005. He did not appear at a directions hearing on 14 December 2005 and his application was dismissed due to his failure to appear. He applied for it to be reinstated and that application was granted. As I have said, the first respondent applied to have the application struck out on the ground that no reasonable cause of action was disclosed or the proceedings or claim for relief were frivolous or vexatious, or an abuse of the process of the court.
8 The application came on for hearing before a Magistrate and on 6 October 2006 he granted the first respondent’s application. The applicant was unrepresented and such submissions as he made related to the merits of his application for a protection visa. The Magistrate considered whether s 425 had been complied with and he found that it had been and that the Tribunal member was entitled to proceed under s 426A to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Magistrate also considered whether s 424A had been complied with and, again, he found that it had been. He also directed himself, in my opinion, correctly, as to the need for him to be satisfied that the claims made by the applicant were clearly untenable. He reached the conclusion that the Tribunal had approached the application for review correctly and that no jurisdictional error was identified on the face of the documents before him. Accordingly, he dismissed the application.
9 There is nothing in the notice of appeal or in the submissions which the applicant made on the application which suggest that the Magistrate erred.
10 In those circumstances, the application for leave to appeal is not
attended with sufficient doubt to warrant a grant of leave,
and leave is refused
(Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR
397). The applicant should pay the first respondent’s costs.
Associate:
Dated: 16
February 2007
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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