NBHV v Minister for Immigration & Citizenship [2007] FCA 1749 (16 November 2007)

Last Updated: 22 November 2007

FEDERAL COURT OF AUSTRALIA

NBHV v Minister for Immigration & Citizenship [2007] FCA 1749

NBHV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1412 OF 2007

SUNDBERG J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1412 OF 2007

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

JUDGE:	SUNDBERG J
DATE OF ORDER:	16 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1412 OF 2007

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

JUDGE:	SUNDBERG J
DATE:	16 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of the People’s Republic of China. She arrived in Australia on 20 December 2003. On 30 December 2003 she applied for a protection visa. A delegate of the first respondent refused the application. That decision was affirmed by the Refugee Review Tribunal. The applicant applied to the Federal Court for review of that decision. The proceeding was transferred to the Federal Magistrates Court. On 27 January 2005 the applicant filed a notice of discontinuance of the proceeding, and was ordered to pay the first respondent’s costs. On 25 January 2006 she sought Ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth) (the Act). On 20 December 2006 intervention was refused. On 19 June 2007 the applicant again applied to the Federal Magistrates Court for review of the Tribunal’s decision. The applicant was dismissed on the basis that it was incompetent because more than 84 days had passed since the applicant was notified of the Tribunal’s decision. See s 477(3) of the Act. The applicant seeks leave to appeal from that decision. Leave is required under s 24(1A) of the Federal Court Act 1976 (Cth) because the decision sought to be appealed from is interlocutory: Dai Rong-Hua v Telecommunications Industry Ombudsman [2000] FCA 717 at [6]. An application for leave is heard by a single Judge or a Full Court: s 25(2)(a) of the Federal Court Act. Order 52 rule 2AA of the Rules provides that an application for leave under s 25(2) of that Act is to be heard by a single Judge.

2 The application to this Court asserts that the Magistrate erred in finding the Court had no jurisdiction because the applicant was outside 84 days of notification of the Tribunal’s decision. It also claims that the Tribunal did not "observe the Act properly".

3 In the general run of cases in which leave to appeal from an interlocutory decision is sought there are two enquiries. First, whether the decision is attended with sufficient doubt to warrant reconsideration. Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 104 ALR 621. However these two enquiries do not impose a straight jacket on the Court. Section 24(1A) of the Federal Court of Australia Act confers an unfettered discretion. In Décor at 622 the Full Court said:

But we do not understand the judges who decided Niemann [v Electronic Industries Ltd [1978] VR 431] 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 (Cth) which confer on the court an unfettered discretion.

4 The Full Court referred to the decision of the Court of Appeal of the Northern Territory in Nationwide News Pty Ltd v Bradshaw (1986) 41 NTR 49 where Niemann was said not to lay down "rigid or exhaustive criteria", and to an earlier observation of a Full Court decision in Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 14 FCR 359 at 375 that the Niemann formulation was not an exhaustive test to be applied to all cases. The Full Court in Décor concluded at 623:

In our opinion, the principles discussed in Niemann and in the other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this, that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave.

5 The first respondent concedes that the Magistrate’s decision is attended by sufficient doubt to warrant reconsideration: Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 at [46]- [47]. However, he urges the Court to refuse leave in the exercise of its discretion.

6 The appellant claimed to have a well-founded fear of persecution by the Chinese authorities because she was a Falun Gong practitioner. As she did not respond to the Tribunal’s invitation to attend a hearing and did not appear before the Tribunal on the scheduled date, the Tribunal proceeded to make a decision in her absence without taking any further action to allow or enable her to appear before it. See s 426A. Due to the insufficiency of information and lack of detail in the applicant’s claim, the Tribunal was unable to be satisfied she had been persecuted or that there was a real chance she would be persecuted in the future.

7 Having regard to the failure of the applicant to appear before the Tribunal pursuant to its invitation, her prospects of succeeding on the merits of her application are very slight. Cf SZKKT v Minister for Immigration and Citizenship [2007] FCA 1128 at [15]. The Tribunal’s reason for its decision was a lack of satisfaction, based on insufficient detail having been provided by the applicant: SZECI v Minister for Immigration and Citizenship [2005] FCA 1201 at [24]. On this ground I would refuse leave to appeal. Assuming the decision of the Magistrate to be wrong, her prospects of success on an appeal are so slight that no substantial injustice would result from the refusal of leave.

8 An additional reason for not granting leave to appeal is that in January 2005 the applicant voluntarily elected to discontinue her application in order to pursue a spouse application. In her affidavit in that Court she said she was discontinuing her application because she had married and intended to lodge a spouse (married) application offshore.

9 The present case is distinguishable from SZFOG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1170, where misconduct on the part of a migration agent in respect of the filing of a notice of discontinuance was alleged, and from Applicant A26 of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 1050, where the notice was filed by the applicant’s former solicitors without his consent. Here there was a knowing and voluntary election to discontinue because the applicant intended to seek an alternative visa.

10 In all the circumstances I decline to grant leave to appeal, first on the ground that the appellant has no real prospect of success on the merits of her application, so that it would be pointless to grant leave, and there would be no substantial injustice in refusing it, and secondly on the ground of the election to discontinue.

11 The application is dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 16 November 2007

The applicant appeared in person.

Counsel for the Respondent:
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	15 November 2007
Date of Judgment:	16 November 2007