SZKNX v Minister for Immigration and Citizenship [2007] FCA 1630

FEDERAL COURT OF AUSTRALIA

SZKNX v Minister for Immigration and Citizenship [2007] FCA 1630

MIGRATION – Application for leave to appeal from an interlocutory decision of a Federal Magistrate – Where Federal Magistrate found application was filed out of time – Appeal allowed – Time does not begin to run under s 477 of the Migration Act until there has been a physical delivery to the applicant of a written statement prepared by the Tribunal in accordance with s 430(1) of the Migration Act –Orders made by consent that matter be remitted to Federal Magistrates Court Migration Act 1958 (Cth) ss 417, 430(1) Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 SZKNX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1115 OF 2007

TRACEY J

19 NOVEMBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1115 OF 2007

BETWEEN: SZKNX

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J

DATE OF ORDER: 2 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS BY CONSENT THAT:

1. The application for leave to appeal be granted. 2. The appeal be allowed. 3. The proceeding be remitted to the Federal Magistrates' Court for hearing and determination. 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 1115 OF 2007

BETWEEN: SZKNX

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J

DATE: 19 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from an interlocutory judgment of aFederal Magistrategiven on 28 May 2007: see [2007] FMCA 878. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ("Tribunal") made on 26 February 1999 refusing to grant a protection visa to the applicant. 2 The applicant is a citizen of Indonesia who arrived in Australia on 10 May 1997. On 25 June 1997 the applicant lodged an application for a protection visa. A delegate of the first respondent refused the application on 28 February 1998. On 27 March 1998 the applicant applied to the Tribunal for a review of that decision. 3 The applicant claimed to have a well-founded fear of persecution based on his religion and political opinion as a Christian and a supporter of Megawati Sukarnoputri and the Partai Demokrasi Indonesia (PDI) in opposition to Suharto. The applicant indicated he was not a member of the PDI but supported the party during the general election in 1992 and claimed, at the hearing before the Tribunal, to have been involved in a well-documented incident at the PDI headquarters on 27 July 1996. He claimed to have been detained after the incident for eight days but not charged with an offence. He also claimed that, after his arrival in Australia, he had been active in attending church. 4 The Tribunal had serious doubts about the credibility of the applicant's claims relating to his fear of persecution due to his support for the PDI. The applicant's responses were found to be vague and inconsistent. It was not accepted that the applicant was of any adverse interest to Indonesian authorities. The Tribunal held that the applicant could return to Bali. It relied on independent evidence which indicated that there was religious tolerance in this part of Indonesia. 5 On 8 March 2007 the applicant was taken into immigration detention. On 23 April 2007, whilst in detention, the applicant sought judicial review of the Tribunal's decision. At the time of the Federal Magistrate's decision the applicant had been released into the community. 6 The Federal Magistrate found that the application had been made out of time, that it was incompetent and concluded that the court had no jurisdiction to entertain it. His Honour found that there was evidence that the Tribunal member signed the decision on 26 February 1999 and that, on that day, posted a copy of it to the applicant at his home address by registered mail. That letter was not returned unclaimed. Further, a letter from Adrian Joel and Co was sent on behalf of the applicant to the Ministerial Liaison Unit on 17 March 1999 seeking intervention by the Minister under s 417 of the Migration Act 1958 (Cth) ("Act"). The applicant gave evidence before the Federal Magistrate that he did instruct his solicitors to act for him and that he had handed over to his solicitors documents relating to the Tribunal's decision. The Federal Magistrate found that the applicant had actual notification of the Tribunal's decision prior to 1 December 2005 and was required to file any application for review by 23 February 2006. The application was not filed until 23 April 2007, well outside the time provided for in s 477 of the Act. 7 On 19 June 2007 the applicant filed an application for leave to appeal from the decision of the Federal Magistrate. An affidavit and draft notice of appeal in support of the application asserts that the applicant disagrees with the decision of the Federal Magistrate and the Tribunal because the Tribunal's decision was affected by error of law. No particulars were provided. 8 At the hearing counsel for the Minister advised the Court that the Minister would consent to orders granting the applicant leave to appeal from the Federal Magistrates' decision, setting aside the decision and remitting the matter to the Federal Magistrates' Court for a final hearing. The Minister felt bound to consent to such orders because of the decision of the Full Court of this Court in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 which had been decided after the Federal Magistrate had made his decision. In that case the Full Court held that time did not run against an applicant under s 477 of the Act until there had been a physical delivery to the applicant of a written statement prepared by the Tribunal in accordance with s 430(1) of the Act. Delivery must be to the applicant personally. This had not occurred in the present case. The facts of this case bear a remarkable similarity to those in SZKKC: see at [51] and [52], a case in which the Full Court upheld a decision by a Federal Magistrate that he had power to hear the application for judicial review. 9 I note that the Minister made a formal submission that SZKKC was wrongly decided. 10 The applicant did not oppose (and may be taken to have consented to) the making of the orders proposed by counsel for the Minister. 11 In the circumstances I consider it to be appropriate that the orders proposed by the Minister should be made. I certify that the preceding Eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.