SZEZC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 809

FEDERAL COURT OF AUSTRALIA SZEZC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 809 Federal Magistrates Court Rules rule 13.03(2)(b), 16.05 SZEZC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 777 OF 2005 HELY J 7 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 777 OF 2005

BETWEEN: SZEZC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 7 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed with costs. 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 777 OF 2005

BETWEEN: SZEZC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 7 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 22 June 2004 the Refugee Review Tribunal ('the RRT') handed down its decision which affirmed a decision of the Minister's delegate not to grant a protection visa to the applicant. The applicant failed to attend a hearing before the RRT which had been scheduled for 27 May 2004 and the RRT did not accept what it described as the scant evidence provided by the applicant that she was ever associated with Falun Gong. It was this alleged association which was the foundation of the applicant's claim for a protection visa. 2 On 23 July 2004 an application for judicial review of the RRT's decision was filed with the Federal Magistrates Court. In that application the applicant claimed: '1. I meet refugee criteria. 2. There was no evidence or the other materials to justify the making of the decision. 3. Costs. 4. Such further order as the court thinks fit.' 3 The only ground of the application was stated to be as follows: 'I face persecution from my original country because I belong to a particular social group - Falun Gong.' 4 On 26 October 2004 consent orders were made by a registrar of the Federal Magistrates Court requiring the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any evidence on which the applicant proposed to rely by 11 January 2005. 5 On 20 January 2005 the respondent's solicitors wrote to the applicant advising that the orders of 26 October 2004 had not been complied with and unless they were complied with by 30 January 2005 the respondent would have the matter listed in the non-compliance list with a view to it being summarily dismissed. 6 The matter came before Lloyd-Jones FM on 3 May 2005. His Honour found that the orders of the Court made on 26 October 2004 had not been complied with. Nonetheless, he read through the Court book in order to form a view as to whether the applicant had an arguable ground for review. Having undertaken that exercise his Honour came to the conclusion that the applicant had not disclosed any arguable ground of review. Hence he dismissed the matter pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules for failure to comply with the orders of the Court dated 26 October 2004. 7 As the decision which summarily dismissed the applicant's claim is in point of law an interlocutory decision an appeal from that decision may only be brought by leave. On 19 May 2005 an application was made to this Court for leave to appeal. The grounds upon which that application is made are set out in the applicant's affidavit filed in support of the application and are as follows: '1. I am a Falun Gong practitioner. 2. I was prosecuted by Chinese government because I belong to a particular social group - Falun Gong. 3. I face a risk of being jailed if I go back to China.' The grounds given in the draft notice of appeal are to similar effect. 8 Neither the applicant's affidavit nor the draft grounds of appeal address the fact that the Federal Magistrate dismissed the proceedings for non-compliance with the orders made on 26 October 2004 and they do not expose any error on the part of the Federal Magistrates Court in dismissing the proceedings for that reason. It is not for this Court to exercise the powers given to the Federal Magistrates Court by rule 16.05 of the Federal Magistrates Court Rules, and I say nothing at all about the possible application of that rule. 9 The issue before this Court is whether it is reasonably arguable that the impugned order should not have been made in the proper exercise of the Federal Magistrate's discretion. The applicant has not asserted that the Federal Magistrate made any error in his finding that the Court's order had not been complied with, notwithstanding warnings from the respondent's solicitor that the applicant should comply with the terms of that order. There was nothing placed before the Federal Magistrate which indicated that the applicant had a viable claim, and on the material before the Federal Magistrate he correctly concluded that the claim was doomed to failure. The Federal Magistrate therefore did not err in the exercise of his discretion to dismiss the proceedings for non-compliance with the Court's order. 10 Leave to appeal from the Federal Magistrate's decision should be refused because the decision was clearly correct. The decision is not attended by any sufficient doubt to warrant it being reconsidered by an appellate court. 11 The application for leave to appeal is dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.