SZHRK v Minister for Immigration & Citizenship [2007] FCA 219 (23 February 2007)

Last Updated: 28 February 2007

FEDERAL COURT OF AUSTRALIA

SZHRK v Minister for Immigration & Citizenship [2007] FCA 219

SZHRK v MINISTER FOR IMMIGRATION & CITIZENSHIP AND
REFUGEE REVIEW TRIBUNAL

NSD 1768 OF 2006

LINDGREN J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1768 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHRK Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2. The appeal be dismissed.

3. The appellant pay the first respondent’s costs of the appeal fixed in the sum of $2600.

4. These orders not be entered until after the expiry of a period of 21 days from today’s date.

5. The solicitors for the first respondent inform the appellant of her right to apply within the period referred to in the immediately preceding order to have orders 2. and 3. set aside.

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 1768 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHRK Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LINDGREN J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals against a decision of the Federal Magistrates Court of Australia given on 24 August 2006. That Court dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal. The Tribunal’s decision was signed on 14 October 2005 and handed down on 3 November 2005. By its decision, the Tribunal affirmed a decision of a delegate of the first respondent (respectively, ‘the Delegate’ and ‘the Minister’) not to grant a protection visa to the appellant.
2 The appellant is a national of the People’s Republic of China. She arrived in Australia on 13 March 2005 and applied for the protection visa on 17 March 2005. The Delegate refused to issue the protection visa on 20 April 2005. The appellant lodged an application to the Tribunal on 23 May 2005 for review of the Delegate’s decision.
3 The appellant filed her notice of appeal in this Court on 14 September 2006. The only grounds of appeal stated were that the Tribunal’s decision was affected by jurisdictional error in that it:
‘failed to comply with its obligation pursuant to the Migration Act 1958 and denied the applicant procedural fairness.’

4 Upon the matter being called this morning, the appellant did not appear. Yesterday, at about 2.15 pm the appellant attended at the Registry and handed the counter officer a medical certificate dated 9 February 2007 of Dr Mary Chung of Associated Medical Centre, to the effect that the appellant was pregnant and was not ‘suitable for long distance flight or travelling’. The certificate also contained a recommendation by Dr Chung against the appellant’s flying or travelling in her current condition. The appellant told the counter officer that she could not attend Court today.
5 The counter officer explained to the appellant that if she did not attend Court today, her appeal may be dismissed. She suggested that the appellant contact the Minister’s solicitors and seek their consent to an adjournment.
6 The appellant apparently went to the offices of DLA Phillips Fox, the solicitors for the Minister. Later in the afternoon, she returned to the Registry with a blank form of notice of discontinuance which she said had been given to her by DLA Phillips Fox. There were a number of telephone calls later in the day between the Duty Registrar and Ms McDonald, solicitor, of DLA Phillips Fox, and also between my associate and Ms McDonald. Apparently, the appellant had expressed a wish to Ms McDonald to discontinue the proceeding. Apparently, too, during her discussions with DLA Phillips Fox and the Registry, the appellant had the benefit of a friend who was able to interpret over the telephone.
7 The counter officer explained to the appellant that a notice of discontinuance would end the proceeding rather than adjourn the hearing.
8 Apparently the appellant again went back to the offices of DLA Phillips Fox, saying that she did not wish to attend Court and wished the proceeding to be finished rather than to have to attend Court on a later date.
9 The upshot of all this was that a form of consent orders providing for dismissal of the proceeding was emailed to my associate. In the place provided for the appellant’s signature, there is no signature but the appellant’s name in handwriting in block capital letters. The document also provided that the appellant pay the Minister’s costs of $2600.
10 Ms McDonald has signed the form of consent orders as solicitor for the Minister. I infer that the appellant’s name is in the handwriting of the appellant.
11 The question that now arises is whether I can be sure that the appellant understands that a dismissal will mean that the proceeding is at an end. It is not possible for me to compel the appellant to attend the Court so that I can explain the position to her. (It is unfortunate that she did not attend today because a Mandarin interpreter is in attendance.)
12 Ironically, if the appellant had simply not attended today, I would have dismissed her appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). It is only because ‘the waters have been muddied’ by the events of yesterday afternoon that the position has become less straightforward.
13 All things considered, I think the appropriate course is to make the orders sought but to direct that they not be entered for a period of 21 days, during which period the appellant will be at liberty to apply under O 35 r 7 for an order setting them aside.
14 I will ensure that the Court informs the appellant of her right to make this application, and, for more abundant caution, will direct that the solicitors for the Minister do likewise.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 28 February 2007

Solicitor for the Respondents:	Ms Z McDonald of DLA Phillips Fox
Date of Hearing:	23 February 2007
Date of Judgment:	23 February 2007