SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 713

FEDERAL COURT OF AUSTRALIA

SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 713 SZBMN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 277 of 2005 ALLSOP J 3 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 277 of 2005

BETWEEN: SZBMN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 3 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. An extension of time be granted to file an application for leave to appeal from the orders of the Federal Magistrates Court made on 11 February 2005 up to and including 23 February 2005. 2. The applicant be granted leave to appeal from the said orders. 3. Refer the applicant to the District Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance. 4. The costs of the application be costs in the appeal. 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 277 of 2005

BETWEEN: SZBMN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 3 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from orders made by a Federal Magistrate under Rule 13.10(a) of the Federal Magistrates Court Rules. Rule 13.10(a) is in the following terms: The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that: (a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; … 2 On 24 September 2003, the applicant filed an application relying on s 39B of the Judiciary Act 1903 (Cth) in which relief was sought in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 11 August 203 and handed down on 18 September 2003 in which the Tribunal affirmed the decision of a delegate not to grant a protection visa. 3 The terms of the application in the Federal Magistrates Court contained the following assertions: 1. That, the decision involved an error of law, whether or not the error appears on the record of the decision. 2. That a breach of the rules of natural justice occurred in connection with the making of the decision. 3. That the applicant was denied procedural fairness in connection with the making of the decision. 4. That the Tribunal member refused to accept that the applicant has a well-founded fear of persecution on convention reasons. 5. That the Tribunal decision was unjust and was made without taking into account the full gravity of the applicant's circumstances and the consequences of the claim. 6. That procedures that were required by law to be observed were not observed. 7. That there was no evidence or other material to justify the making of the decision. 4 As can be seen, paragraphs 1, 4, 5 and 6 do not identify jurisdictional error. If these paragraphs were expressed with greater specificity it may be that there would be such error disclosed. The assertions in these paragraphs are consistent with jurisdictional error, but not descriptive of it. 5 Paragraphs 2, 3 and 7, on the other hand, state conclusions each of which would amount to jurisdictional error. No particulars were given, but the Court form used only calls for particulars of fraud or bad faith. These matters were not alleged. 6 The proceedings came before a Registrar on 18 December 2003. The following orders were made by consent on that day: 1. The respondent to file and serve a bundle of relevant documents by 22 January 2004. 2. The applicant to file and serve any amended application and any affidavit material upon which he intends to rely by 26 February 2004. 3. The applicant to file and serve written submissions five clear working days prior to the hearing date. 4. The respondent to file and serve written submissions two clear working days prior to the hearing date. 5. The matter be listed for hearing at 11.30 am on 19/7/05 before 6. The parties have liberty to apply on three days notice. 7 It is to be noted that order 2 does not require an amended application to be filed and does not require evidence to be filed. Rather, if any amended application is to be relied on and if evidence is to be relied on such was to be filed and served by 26 February 2004. This is the consequence of the word "any" where used. 8 No amended application or evidence was filed or served. 9 As can be seen from the orders made on 18 December 2003, the applicant could reasonably have been of the view (as he may well have been: see paragraph 3 in [11] below) that he had until shortly prior to the hearing date on 19 July 2004 to file submissions. 10 Time passed under the existing timetable for any evidence to be filed, although, an application for further time could have been made. 11 On 20 January 2005, a notice of motion was filed which stated that at 11.15 am on 11 February 2005 the respondent would seek an order dismissing the proceedings pursuant to Rule 13.10(a) as disclosing no reasonable cause of action. An affidavit of Anton Bockwinkel, a lawyer employed by the Australian Government Solicitor, was filed on the same day, 20 January 2005 in support of the motion. It merely annexed the delegate's and the Tribunal's decisions and proved that no amended application had been filed. 12 The motion came on for hearing before the Federal Magistrate. The applicant was given leave to file submissions in opposition to the motion. Those submissions stated the following: In the reference of Australian Government Solicitor's letter dated 20th January 2005, I would like to submit as below:- 1. That, on 18th December 2003 in the short minute of orders a hearing dated was given by the Honorable Magistrate for 19.07.05. 2. That, I was on the pilot scheme for seeking free legal advice and accordingly I contacted the lawyer who was nominated for the free legal advice. The lawyer discussed with me all the issues and finally advised that my case is not strong enough and he would not be able to help me any further and same time advised to hire another lawyer by saying that he might help in my case. 3. That, I being under impression of final hearing date which was fixed for 19.07.05, I was trying to save some money so I can hire a lawyer and seek further advise. 4. That, I will definitely seek further legal advise before the final hearing which is on 19.07.05 and file the submission five working days prior to the hearing date and in that submission a reasonable cause of action with an error of law will be clearly outlined. 5. That, it is too early for the Australian Government Solicitor to seeking the summary dismissal of my case as I am in the process of saving money for seeking further legal advise in my matter for filing the submission before hearing date. In the interest of justice notice of motion filed by government solicitor may kindly be dismissed. [emphasis and errors in original] 13 The Federal Magistrate in [9] of his reasons set out the substance of oral submissions made: In his oral submissions the applicant stated that, while he could not point to any legal error in the decision of the RRT, if he was given more time with the assistance of a lawyer he might be able to do so. 14 The Federal Magistrate, after referring to the caution which needs to be exercised in summary disposal, said the following at [13] and [14] of his reasons: As I have already noted, the application before the Court is devoid of particulars. No affidavit material has been filed which might assist in clothing the application with some meaning. While grounds are asserted, none, in my view, have any chance whatsoever of success. On my reading of the decision of the RRT the presiding member has given a careful and thorough consideration to the applicant's claims. Nothing of any concern to me arises from the decision and reasons of the RRT or any other of the material in the book of relevant documents. I find that the application is doomed to fail. In my view, the applicant has had ample time to put his application into a proper from warranting a final hearing. He has failed to do so and I am not minded to give him the further time that he seeks. 15 It seems to me that in the context the procedural history of the matter that I have outlined there are a number of important issues that are worthy of resolution in this case and which form the basis of my view that leave to appeal should be granted. 16 First, in circumstances where a clear foundation of jurisdictional error is asserted can it be said that "no reasonable cause of action is disclosed in relation to the proceeding or [any] claims for relief"? 17 Secondly, and related to the first question, whether the use of Rule 13.10(a) is apt in the absence of an order that full and complete particulars be provided of the asserted ground. Rule 1.05 of the Federal Magistrates Court Rules applies Order 54B of the Federal Court Rules. Order 54B rule 2 makes Form 56A mandatory. Form 56A does which does not require particulars (unless fraud or bad faith is set out as a ground). See in this respect the helpful judgment of Lander J in Rana v University of South Australia [2004] FCA 559, especially [73]. 18 Thirdly, in the light of the hearing date and time for submissions shortly prior thereto was there a basis for dismissing the application for the reasons in [13] and [14]? Put another way, was the applicant denied procedural fairness in the course that was taken absent an order clearly made requiring full and complete particulars? 19 Fourthly, assuming the lack of particularity was a basis for dismissal should Rule 13.10(a) have been used or was Rule 13.10(b) the proper source of power? 20 In my view, there are serious procedural issues in relation to the operation of the Rules of the Federal Magistrates Court and leave to appeal is appropriate. 21 The application for leave was filed on 23 February 2005. The Federal Magistrate's orders were made on 11 February 2005. To the extent that an extension of time is required I will grant it. I also propose to make an order under Order 80 of the Federal Court Rules in relation to the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .