SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 (16 June 2004)

Last Updated: 28 June 2004

FEDERAL COURT OF AUSTRALIA

SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 779

MIGRATION – incompetent appeal from an interlocutory decision of a Federal Magistrate – treated as application for leave to appeal – claim that applicant had not received notice of hearing before Tribunal – claim that migration agent had declined invitation to hearing before without consultation or instructions – claim that applicant has supplementary material that he would have provided to Tribunal had he known of the hearing – no evidence to support claims – statutory obligations of the Tribunal to notify the applicant of hearing

PRACTICE AND PROCEDURE – determining if decision is final or interlocutory – considerations when granting leave to appeal

Federal Court Act 1976 (Cth) ss 24(1A), 24(1)(d), 25(2)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 425(1), 425A(1), 425A(2)(a), 426A(1), 441G(1), 441G(2), 441A(4), 441C(4)

Federal Court Rules Order 52 Rule 5

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Al-Mehdawi v Secretary of State for the Home Department (1990) 1 AC 876
Applicant M172 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23
Brouwer v Titan Corporation Ltd (1977) 73 FCR 241
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221
In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564
Little v State of Victoria [1998] 4 VR 596
Minogue v Williams [2000] FCA 125
NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395
NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24
Niemann v Electronic Industries Ltd [1978] VR 431
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

SZBSZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N402 OF 2004

BENNETT J
16 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N402 OF 2004

BETWEEN:	SZBSZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	16 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal is dismissed as incompetent.
2.	The application for an extension of time for which to apply for leave to appeal is refused.
3.	The applicant is to pay the respondent's 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	N402 OF 2004

BETWEEN:	SZBSZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	16 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of the People's Republic of China. His application for a protection (Class XA) visa was refused by a Delegate of the respondent (‘the Delegate’). He applied for a review of this decision to the Refugee Review Tribunal (‘the Tribunal’) and the Tribunal affirmed the decision of the Delegate. The application was determined on the basis of the written information before the Tribunal because the applicant had indicated, through his migration agent, that he did not wish to attend the hearing.

2 An application to review the Tribunal's decision was made to the Federal Magistrates Court under s 39B of the Judiciary Act 1903 (Cth). This is an appeal from Driver FM who, on 15 March 2004, dismissed the application for review on the basis that it disclosed no reasonable cause of action. A notice of appeal was filed, in this Court, on 24 March 2004.

3 The matter came before me on 15 April 2004 for directions. At the time of the directions hearing the written reasons of Driver FM had not been published. The respondent’s contention was that Driver FM’s decision was an interlocutory decision and, as leave is required before a notice of appeal can be filed in relation to a interlocutory decision and no leave had been sought by the appellant, the appeal was incompetent.

4 I made directions for the written reasons of Driver FM to be obtained. I also made directions giving the appellant the opportunity to consider the decision of Driver FM and either to file an amended notice of appeal or to file an application for leave to appeal.

5 An amended notice of appeal was filed on 30 April 2004. The grounds set out were:

‘(1) The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.

(2) The decision involves errors of law.’

6 No further particulars were given.

DECISION OF THE FEDERAL MAGISTRATE

7 The respondent objects to the competency of the appeal on the basis that the orders and judgment of 15 March 2004 are interlocutory and the appellant has not been granted leave to appeal against the orders and judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’). Section 24(1A) provides that ‘an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave to appeal’. Section 24(1)(d) of the Federal Court Act gives the Court jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court. Section 24 has the effect that, if the judgment sought to be appealed from is interlocutory, an appeal shall not be brought unless a Judge gives leave to appeal. Pursuant to s 25(1A) of the Federal Court Act, the Chief Justice has directed that the appeal from the decision of Driver FM be heard before a single Judge. Section 25(2) provides that applications for leave to appeal and applications for extension of time in which to institute an appeal may be heard by a single Judge. Accordingly, it is clear that I have power to deal with the appeal, an application for leave to appeal and the respondent’s motion.

8 Order 52 Rule 5 of the Federal Court Rules provides that an application for leave to appeal should have been filed within 21 days after the decision of the Federal Magistrate. Although the applicant has not filed an application for leave to appeal, the respondent consents to the Court treating this hearing as such an application. The difficulties faced by courts in determining the distinction between final and interlocutory judgments were discussed by French J in Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [42]. His Honour referred to the policy behind s 24(1A):

‘The time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties.’

9 The general principle was also stated clearly by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177: ‘appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure’.

10 Whether a judgment is final or interlocutory depends on whether the judgment finally determines the rights of the parties to the proceedings so that the court must have regard to the legal rather than the practical effect of the judgment; see Brouwer v Titan Corporation Ltd (1977) 73 FCR 241 at 242; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248; Minogue v Williams [2000] FCA 125 at [18] and In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [9] per McHugh ACJ, Gummow and Heydon JJ:

‘An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.’

11 It was held, however, in Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 that where the practical operation of the judgment is the final determination of the rights of the parties, although interlocutory in legal effect, a prima facie case can be found to exist for granting leave to appeal. In Little v State of Victoria [1998] 4 VR 596 at 601, Callaway JA discussed the reasons for granting leave as follows:

‘if a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed, it is highly desirable that there be no appeal except by leave. Leave will usually be granted in such cases if there is any doubt about the correctness of the decision below, but truly hopeless appeals should be prevented, to the advantage of the parties and other litigants waiting to be heard.’

12 The Full Court of the Federal Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 adopted, as a general test for application for leave to appeal an interlocutory decision, the principles in Niemann v Electronic Industries Ltd [1978] VR 431:

(1) ‘whether in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court’; and
(2) ‘whether substantial injustice would result if leave were refused, supposing the decision to be wrong’.

THE DECISION OF THE FEDERAL MAGISTRATE

13 Driver FM gave the applicant the opportunity to explain what was wrong with the decision of the Tribunal. The applicant claimed that his migration agent had acted without consultation or instructions when the invitation to attend the hearing was declined. No evidence was provided to support that claim. Driver FM held that: ‘Any fault on the part of the migration agent in dealing with the hearing invitation could not support an assertion of jurisdictional error.’ His Honour relied on a decision of the Chief Federal Magistrate in Applicant M172 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23 (‘M172’).

14 In M172, the applicants alleged that they had been denied the opportunity to appear before the Tribunal by their migration agent. There the assertion was that the applicants were misled by the migration agent. It was not an admitted fact and there was no evidence to support the allegation. As Bryant CFM pointed out, a mere allegation falls far short of establishing procedural unfairness however described. The basis of her Honour's decision seems to have been that it would at least be a requirement to show some demonstrated failure on the part of the Tribunal. Her Honour also relied upon the decision in the House or Lords in Al-Mehdawi v Secretary of State for the Home Department (1990) 1 AC 876 and, in particular, what was said by Lord Bridge at 898:

‘These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of procedural impropriety or that natural justice has been denied to him’.

As her Honour pointed out, ‘all the Australian authorities require some defect in the decision making process’.

15 Driver FM found that the application for review did not ‘disclose any course [sic] of action’. His Honour held that there was no real question to be tried and that the application should be dismissed for failing to disclose a reasonable cause of action and considered that an amendment to the application would not help. His Honour held that the assertion that the migration agent had erred in dealing with the hearing invitation was not jurisdictional error. In dealing with the submission that was made as to the existence of supplementary information that the applicant wished to put before the Tribunal, his Honour held that such information, that was revealed subsequent to the Tribunal decision, could not support a claim of jurisdictional error (see NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42] and [50]).

16 The Federal Magistrate expressed agreement with the Delegate concerning the lack of detail given to support the applicant's case and also agreed with the Tribunal that the material placed before the Tribunal was insufficient. The applicant did not add any further information to the original protection visa application when the application came before the Tribunal for consideration. The application for review to the Tribunal stated only a bare outline of the applicant’s claim to be involved in the Falun Gong and to have been mistreated. The Tribunal found ‘no indication that he has pursued the practice of Falun Gong in the time he has been in Australia’ and no explanation for this was given. The Tribunal found that it was not possible for it to ‘assess the nature and extent of any mistreatment he suffered in the past or the chance of any mistreatment in the future’. The Tribunal applied Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 to the effect that it was not obliged to make the applicant's case for him. It held that ‘the claims amount to a number of very brief, unsubstantiated assertions with insufficient information so that the Tribunal was unable to ‘be satisfied as to the facts or assess the chance of persecution in the future’. Therefore, the Tribunal held that the applicant was not a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.

THE APPEAL

17 Before me today, the applicant has appeared in person, assisted by an interpreter. He raised the same matters that he had raised before the Federal Magistrate, to the effect :

(1) that he had been given no opportunity to participate in the hearing before the Tribunal because he had received no notice of the hearing either directly or from his migration agent; and
(2) that he had supplementary information but did not know how and when to forward it to the Tribunal.

18 In addition, the applicant emphasised that he had no knowledge of the Migration Act 1958 (Cth) (‘the Act’) or of the procedures relevant to his hearing. While he referred to additional material, there was no identification of the nature of such material or why it would have made any difference to the conclusion reached by the Tribunal.

NOTICE OF HEARING BEFORE THE TRIBUNAL

19 I turn first to the question of the notice of the hearing before the Tribunal. Sections 441G(1) and (2) of the Act provide:

‘(1) If:

(a) a person (the applicant) applies for review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.

(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.’

Section 425(1) provides:

‘The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.’

Section 425A(1) provides:

‘If the applicant's invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.’

20 A letter inviting the applicant to attend a hearing before the Tribunal (‘the letter’) was sent to the applicant care of his nominated migration agent. It would appear from the letter that a copy of it was also sent by registered post to the applicant at the address nominated in the application for review to the Tribunal. The application for review nominated as the address to which correspondence was to be sent the address of the applicant's migration agent, Mr Jack Meng. The application appears to have been signed by the applicant and there is no evidence to the contrary. The copy of the letter that was said to have been sent to the applicant also bears an apparent endorsement of a registered post receipt. However, there is no evidence before me that strictly proves that the letter was sent to him by registered post. On the other hand, there is no evidence that the letter was not received.

21 The letter was received by the migration agent. The evidence is that the migration agent responded to the letter, directly to the Tribunal. The applicant initially denied that the signature on his initial application for a protection visa was his signature although he later seemed to resile from that assertion. He said that the migration agent who acted for him on his application for a visa and at the time of the Tribunal hearing was still acting for him. Subsequently, the applicant said that he could not recall whether that agent had acted for him on his original application for a visa. The application form indicates that the same migration agent was acting for the applicant throughout.

22 I emphasise that, while the applicant made various assertions before me as to his failure to receive the notice from the Tribunal, the actions of his migration agent and his lack of knowledge of the hearing before the Tribunal, there was no evidence at all in support of those assertions.

23 Section 425A(2)(a) of the Act provides:

‘The notice must be given to the applicant except where paragraph (b) applies – by one of the methods specified in section 441A.’

24 The applicant was not in immigration detention so paragraph (b) does not apply. Section 441A(4) provides:

‘Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:

(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.’

Section 441C(4) provides:

‘(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or

(b) in any other case--21 days after the date of the document.’

Section 426A(1) provides:

‘If the applicant:

(a)	is invited under section 425 to appear before the Tribunal; and
(b)	does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.’

25 The Tribunal’s notice to the applicant was sent in accordance with statutory requirements. Although the applicant asserts that he did not receive the notice, the Tribunal complied with its obligations to give the applicant notice of the hearing. I am satisfied that, within the framework of the Act, there was no failure to give the applicant the opportunity to appear before the Tribunal and the Tribunal was entitled to make a decision on the application for review in the absence of the applicant (see NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184).

SUPPLEMENTARY MATERIAL

26 With respect to the supplementary material referred to, as I have said, there was no detail of what that contained. The applicant has not demonstrated that such supplementary material would have made any difference to the conclusion reached.

27 As counsel for the respondent pointed out, if the material had been in the applicant’s possession before the Tribunal hearing, it was not put before the Tribunal. Therefore the Tribunal could not be said to have been obliged to take it into account. If the material came into existence after the hearing by the Tribunal, the Tribunal could not have taken it into account.

28 The applicant has not demonstrated any error on the part of the Federal Magistrate or on the part of the Tribunal. The decision of the Federal Magistrate discloses no error of law nor jurisdictional error. It cannot be said that substantial injustice would result if leave were not granted.

CONCLUSION

29 In my view the application for an extension of time should be refused as an appeal from the decision of the Federal Magistrate would, in the words of the Full Court in Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395 at [7] ‘be futile’.

30 Accordingly, the orders of the Court are that the appeal is dismissed as incompetent and the application for an extension of time is refused. The applicant is to pay the respondent's costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:


Dated: 25 June 2004

The Applicant appeared in person assisted by an interpreter
Counsel for the Respondent:	AJ McInerney
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 June 2004
Date of Judgment:	16 June 2004