SZKCO v Minister for Immigration and Citizenship [2007] FCA 1177

FEDERAL COURT OF AUSTRALIA

SZKCO v Minister for Immigration and Citizenship [2007] FCA 1177 SZKCO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 771 OF 2007

LINDGREN J

3 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 771 OF 2007

APPLICATION FOR LEAVE TO APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKCO

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J DATE OF ORDER: 3 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the first respondent's costs of the appeal. 3. The costs referred to in Order 2 above be fixed at the sum of $1,400. 4. Reserve liberty to the applicant to apply to pay by instalments if he can not reach agreement with the first respondent to pay by instalments. 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 771 OF 2007

APPLICATION FOR LEAVE TO APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZKCO

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE: 3 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from a decision of the Federal Magistrates Court of Australia. The judgment in question was delivered on 17 April 2007: SZKCO v Minister for Immigration and Anor [2007] FMCA 638. The learned Federal Magistrate dismissed, pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), the applicant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which was signed on 20 December 2006 and handed down on 11 January 2007. 2 The requirement for leave arises from s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Under s 24(1)(d) of that Act, this Court has, relevantly, jurisdiction to hear and determine appeals from judgments from the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth such as the Migration Act 1958 (Cth) (the Act). But an appeal is not to be brought from such a judgment that is an interlocutory judgment unless this Court or a Judge of this Court gives leave to appeal: s 24(1A) of the FCA Act. Rule 44.12(2) of the Federal Magistrates Court Rules 2001 (Cth) expressly provides that, to avoid doubt, a dismissal of an application for relief by the Federal Magistrates Court under r 44.12(1)(a) is interlocutory. 3 In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court of the Federal Court held that leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant appellate review and, further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. 4 The applicant is a citizen of India who arrived in Australia on 15 April 2006. On 5 May 2006 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (now the Department of Immigration and Citizenship). A delegate of the first respondent (respectively, the Delegate and the Minister) refused to grant the Protection visa on 6 June 2006. On 30 June 2006 the applicant applied to the Tribunal for review of the Delegate's decision. 5 The applicant claimed to fear persecution by the police and politically motivated radical Hindus and other political adversaries because of his past membership of a Muslim organisation. The applicant claimed that in 2002 he was assaulted and that his arm was broken with an iron bar. He said that the police were looking for him daily, and he and his family moved to Madras to live. He also said, however, that he left his family in the village while he travelled to another State and then to Thailand. He would return from Thailand to Madras from time to time but his wife warned him that extremists would track him down in Madras. 6 The Tribunal accepted the applicant's claim that he suffered a physical attack in his local village and fled to Madras, which is some 300 kilometres from the village. However, the Tribunal noted that the applicant had lived in Madras for a while and regularly returned to Madras from Thailand for visits. According to his evidence he suffered no harm in Madras. Accordingly, the Tribunal found it implausible that if the applicant were now to return to Madras, local Hindu extremists from his village, with whom he had had a dispute several years ago, would travel to Madras to attack him. 7 The Tribunal concluded that there was no real chance that the applicant might suffer serious harm should he return to India, and it therefore affirmed the Delegate's decision. 8 The applicant's application for judicial review was filed in the Federal Magistrates Court on 31 January 2007. At a directions hearing in that Court on 20 February 2007, the Federal Magistrate made orders by consent including an order that the proceeding be listed for a show cause hearing pursuant to r 44.12 on 17 April 2007. 9 The applicant filed an amended application in the Federal Magistrates Court on 5 April 2007. At the show cause hearing on 17 April 2007 the Federal Magistrate delivered an ex tempore judgment dismissing the application pursuant to r 44.12(1)(a) and ordered the applicant to pay the Minister's costs in a sum of $1,600. 10 The Federal Magistrate set out the history of the visa application and summarised the applicant's claims. As well, his Honour summarised the Tribunal's findings and reasons. 11 The Federal Magistrate was faced with a difficulty in discerning the precise grounds on which the applicant relied in his amended application. Various matters that were mentioned in the amended application were that: · the Tribunal had imposed too high an onus of proof on the applicant by requiring independent evidence supportive of his claims and by failing to give him the benefit of the doubt; · the Tribunal concentrated on individual elements of the applicant's claims rather than considering at them as a whole; · the Tribunal acted in bad faith. 12 When he commenced this proceeding the applicant filed, in addition to his application for leave to appeal, a supporting affidavit and draft notice of appeal. The affidavit restates the procedural history of the matter and seeks to assert the factual merits of the applicant's claims. 13 Unless it is infected by jurisdictional error, the Tribunal's decision is a "privative clause decision" as defined by s 474(2) of the Act. With respect to privative clause decisions, s 474(1) of the Act provides: A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court of any account. 14 In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the High Court upheld the validity of s 474. It then went on to consider how s 474 should be reconciled with the remainder of the Act. The leading judgment is the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ (the joint judgment). Their Honours held (at [76]) that: ... the expression "decision[s] .. made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss 474(2) and (3) of the Act.