SZDDP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 714

FEDERAL COURT OF AUSTRALIA

SZDDP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 714 SZDDP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1909 of 2004 ALLSOP J 3 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1909 of 2004

BETWEEN: SZDDP

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. The application for leave to appeal be treated as an application for an extension of time in which to seek leave to appeal and as an application for leave to appeal. 2. Time be extended for the filing of the application for leave to appeal up to and including 20 December 2004. 3. Leave to appeal from the orders of Federal Magistrate Mowbray made on 1 December 2004 be granted. 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 1909 of 2004

BETWEEN: SZDDP

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 3 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 On 20 December 2004, the applicant filed an application for leave to appeal against orders made by a Federal Magistrate on 1 December 2004 dismissing the application made under s 39B of the Judiciary Act 1903 (Cth) under Rule 13.03(2)(b) of the Federal Magistrates Court Rules for failure to comply with an order of the Court. 2 The application presently before the Court is defective in that it was required to be made within seven days of the making of the orders by the Federal Magistrate. I propose to treat the application as one for an extension of time for making the application for leave to appeal and the making of the application for leave to appeal. 3 On 10 February 2004, the Refugee Review Tribunal (the "Tribunal") affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 2 March 2004. 4 On 29 March 2004, the applicant filed an application in the Federal Magistrates Court seeking review of that decision. The application contained an assertion of jurisdictional error. The application, after recording a complaint about the treatment of the applicant's oral evidence (his evidence was not accepted) asserted the following: I find the error which the Tribunal made was that it failed to recognise the necessity in applying the definition of "Refugee" in circumstances of country information that is an error of law because it proceeds from an erroneous construction of the Refugee Convention. The decision was not made by reference to subject matter, scope and objects of the Immigration Act. 5 On 25 May 2004 the matter came before a Registrar for directions. On that day, orders were made by consent which included the following: 2. The Applicant file an amended application giving full particulars of each ground of review relied upon by 17 August 2004. 3. After the date for the filing of an amended application, the Respondent may file a summary dismissal application which is to be given a return date by the registry upon filing. 4. The matter be listed for callover at 10.30 on 27-1-05 at which time a final hearing date may be allocated. Note: As hearing dates become available before this directions date, parties may receive notification by mail of a hearing date. 5. The Applicant file and serve any written submissions on or before 5 working days prior to the hearing date. 6. The Respondent file and serve an outline of submissions on or before 2 working days prior to the hearing date. 7. The parties have liberty to apply on 3 days' notice. 6 No amended application as contemplated by order 2 made on 25 May 2004 was filed. 7 On 20 September 2004, the solicitors for the respondent wrote to the applicant and stated the following: We refer to the above matter and note that an amended application was to have been filed and served on the Respondent by 17 August 2004 pursuant to the Court's orders made on 25 May 2004. An amended application has not been served on us to date. Please note that if an amended application is not filed and served with in the next 14 days we will proceed to have the matter transferred into the non-compliance list where it may then be struck out. 8 On 27 October 2004, the solicitors for the respondent wrote to the applicant recounting his failure to comply with the order made on 25 May 2004 and stating the following: On 20 September 2004, we wrote to you and granted you a period of grace to comply with the Order, that is, you file and serve an amended application giving full particulars of each ground of review by 4 October 2004. A copy of this letter is attached. In breach of the Court's order, you did not file and serve an amended application. Consequently we requested the Court to relist the matter so that it may consider making further orders in connection with your application. We have been informed by the Federal Magistrates Court that your matter has been listed in the non-compliance list and will be heard: By: Federal Magistrate Mowbray On: 1 December 2004 Time: 2.45 pm At: John Maddison Tower, 86 Goulburn Street, Sydney, NSW We note that if, by 1 December 2004, you do not remedy the breach of the Court's order, that is you do not file and serve an amended application giving full particulars of each ground of review relied upon, we will ask the Court to dismiss your matter with costs. We further note that should you not attend the hearing scheduled for 1 December 2004 before his Honour Federal Magistrate Mowbray, whether in person or by a legal representative, we will ask the Court to dismiss your matter with costs. Finally, we note for the record, that Mr Michael Kah was appointed to assist you pursuant to the RRT legal advice scheme and that he has informed us that his advice was provided to you on 12 June 2004. 9 Both letters of 20 September and 17 October 2004 were apparently sent to the address nominated in the application. 10 No notice of motion was filed. The matter was relisted by the communication with the Court by the respondent as recounted in the letter of 27 October 2004. 11 The matter was placed in the "non-compliance list" on 1 December 2004. An affidavit of service of the letters of 27 October and 20 September 2004 was filed. 12 The applicant appeared on 1 December 2004. He handed up an outline of submissions. He said that he did not receive the letter of 27 October and 20 September 2004, but did receive the letter enclosing the affidavit of service. The Federal Magistrate concluded that the letters were sent to the applicant "whether or not he received them". 13 The Federal Magistrate dismissed the application because of the failure to file a properly particularised amended application. He dealt with the outline of submissions handed up on 1 December in the following way: …As the respondent submitted to me at the hearing, this is not an amended application. Moreover, the grounds are not particularised. 14 The document handed to the Federal Magistrate on 1 December 2004 was in the terms annexed to these reasons. (Annexure 1) It is not clear from the above that the Federal Magistrate was treating the outline of submissions as a late filed amended application. 15 The applicant had failed to comply with an order of the Court. The precondition for the exercise of the power to dismiss the application was present. Rule 13.03 is in the following terms" 13.03 Default in taking required step etc (1) This rule applies if a party fails to take a step required by the Rules or to comply with an order of the Court. (2) Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order: (a) that the step be taken within a stated time; or (b) to end the proceeding or dismiss a response. (3) The Court may make the order sought or another order that it consider appropriate. 16 It is not appropriate for me to attempt to set out comprehensively the approach which ought be adopted in the use of this rule. A myriad of circumstances might arise to make its use appropriate. Two important criteria should however be borne in mind. First, it should be exercised only when justice requires it. Secondly, the nature of the underlying issues should be recalled. They are claims for protection from persecution. Such claims can raise matters of life and death. Here, the applicant, a Nepalese, said that he feared persecution from a number of quarters, including Maoist rebels. 17 Mr Reynolds, solicitor who appeared for the respondent, very properly, accepted that I should extend time and grant leave to appeal if there was any basis revealed in the outline of submissions handed up on 1 December which could form an arguable basis for an amended application. That acceptance carried with it the notion (correct in my view) that the Federal Magistrate should, as a matter of substantive justice, have examined the outline of submissions as a late and informal substitute for the amended application. It is not clear that he did so. In my view, he certainly should have done so. 18 The applicant has filed two sets of submissions in this Court directed in substance to the complaint that he has against the Tribunal's decision. Most of these submissions restate the asserted inadequacy of the Tribunal's decision by reference to country information and factual issues. I accept that it is difficult to discern from the outline of submissions the substance of compliance with the order of 25 May 2004. Thus, it is perhaps tempting to conclude that no consequence flows from what I see to be the error in the Federal Magistrate's approach. 19 However I cannot be confident that no injustice would be incurred in failing to deal with the matter in the manner I have identified. This is so because the Tribunal decision leaves me with significant concerns. It is not at all clear to me that the applicant's claims that he might be forced to fight for the Maoists or be forced to join the Democratic Party have been dealt with in a way that fulfils the Tribunal's obligations. That possible ground was not clearly enunciated in the outline of submissions given to the Federal Magistrate, though if one appreciates the possible availability of the argument, the submission (drafted by a non-lawyer) may be seen to be groping towards it. Certainly, that issue may form part of properly articulated application or submissions. 20 In all the circumstances, I think that the exercise of the power by the Federal Magistrate was attended by sufficient doubt as to warrant leave being granted. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.