SZDAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 123 (24 February 2005)

Last Updated: 24 February 2005

FEDERAL COURT OF AUSTRALIA

SZDAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 123

Federal Court Rules Order 51A Rule 5(1)

Federal Magistrate Court Rules Rule 13.10(a), 16.05(2)(c)

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 cited
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 cited
Rana v University of South Australia [2004] FCA 559 applied
Re Luck [2003] HCA 70; (2004) 203 ALR 1 cited









SZDAL & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1695 OF 2004



HELY J
24 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1695 OF 2004

BETWEEN:	SZDAL FIRST APPLICANT SZDAM SECOND APPLICANT SZDAN THIRD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	24 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave be granted to the applicants to appeal from the decision of Driver FM summarily dismissing the application for review.

2. The time within which a notice of appeal from that order may be filed be extended up to and including Friday 11 March 2005.

3. 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 1695 OF 2004

BETWEEN:	SZDAL FIRST APPLICANT SZDAM SECOND APPLICANT SZDAN THIRD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	24 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicants are a married couple and their infant son who arrived in Australia on 15 November 1996. They are citizens of Sri Lanka who unsuccessfully applied for a protection visa. On 4 September 1998 the Refugee Review Tribunal (‘the RRT’) affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicants.

2 An application for review of that decision made to the Federal Court under the former s 476 of the Migration Act 1958 (Cth) (‘the Act’) was dismissed by Madgwick J on 7 December 1998 after a hearing on the merits at which the applicants were represented by a solicitor. No appeal was taken from that decision.

3 On 22 February 2001 the applicants joined the Muin/Lie class action in the High Court of Australia. On 29 May 2003, pursuant to orders made by Gaudron and McHugh JJ, the applicants’ former solicitor, Andrew Joel, filed a draft order nisi for the issue of constitutional writs in relation to the RRT’s decision. The application was remitted instanter to the Federal Court of Australia.

4 On 20 February 2004 Emmett J ordered that the application for an order nisi be refused, and that Order 51A rule 5(1) of the Federal Court Rules (‘the Rules’) does not apply. His Honour’s reasons for judgment include the following:

‘22. It is patent that the material filed in this proceeding and each of the other similar proceedings does not demonstrate an arguable case for the grant of any relief. There is a bald assertion that the Tribunal failed to accord the applicant procedural fairness, coupled with the reference to either the Lie or the Muin proceeding in which generalised assertions are made, but in respect of which no particulars are furnished. It is fair to say that counsel for the applicants in all of the proceedings currently before the Court, did not contend that this Court would entertain an application for an order nisi on the basis of the material filed in any of the proceedings.

...

30. I do not consider that there would be any prejudice to the applicant or to any of the other applicants by the refusal of an order nisi. No such refusal would stand in the way of successful prosecution of any subsequent application for prerogative writ relief if properly commenced and particularised.’

5 No application was made for leave to appeal from the decision of Emmett J, nor was any further application for prerogative relief made.

6 On 17 March 2004 an application for judicial review of the RRT’s decision was made in the Federal Magistrates Court, some five and a half years after the making of that decision. The application identified the grounds on which it was made as follows:

‘1. The RRT exceeded its jurisdiction.

2. The RRT constructively failed to exercise its jurisdiction.

3. The RRT failed to accord my application with natural justice in making the said RRT decision. The Tribunal did not receive from DIMIA and consider the documents referred to in Part B of the DIMIA’s decision.

4. The RRT did not bring to my attention and give me an opportunity to respond to the country information on Sri Lanka, on which the RRT relied which were adverse to my review application lodged with the RRT.

5. Particulars of the grounds will be filed after seeking legal advice on this application.’

7 On 1 November 2004, Driver FM made an order pursuant to Rule 13.10(a) of the Federal Magistrate Court Rules (‘the FMCR’) summarily dismissing the application on the ground that no reasonable cause of action was disclosed. The cases establish that the power to dismiss under equivalent rules is to be exercised with great caution and only if the applicant’s claim is so obviously untenable that it cannot possibly succeed.

8 His Honour’s reasons for summarily dismissing the application as disclosing no reasonable cause of action are as follows:

‘5. ... the present application should be dismissed summarily as disclosing no reasonable cause of action. The applicants filed in court by leave today an outline of submissions in support of their judicial review application. It continues to assert the legal merits of their claim based upon the High Court decision in Muin and Lie. That claim has already been dealt with by Emmett J, who has decided that there was no arguable case.

6. There is nothing in the present application that would lead me to depart from that decision. It does not appear to me that the balance of the present application adds anything to the application instituted in the Federal Court in 1998. The grounds are meaningless in the absence of particulars. A reading of the RRT decision leads me to the view that the present application is doomed to failure.’

9 On 18 November 2004 an application was made for leave to appeal from the decision of Driver FM, and it is that application which is now before me. An order dismissing proceedings on the ground of disclosure of no reasonable cause of action has been traditionally regarded as interlocutory in character (Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [43]), and the characterisation of such orders as interlocutory was upheld by the High Court in Re Luck [2003] HCA 70; (2004) 203 ALR 1. An applicant for leave to appeal is ordinarily required to demonstrate that in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant it being reconsidered in the exercise of the appellate jurisdiction of the Court, and that substantial injustice would result if leave were refused supposing the decision to be wrong.

10 The applicants’ outline of submissions which were filed in the Federal Magistrates Court on 1 November 2004 do assert a case based upon the High Court decision in Muin and Lie. The outline of submissions is as follows:

‘A. My High Court application was successful and remitted to the Federal Court although, where it was dismissed, the Federal Court said that it was a interim order and I could appeal further.

Please note that my Refugee Review Tribunal Decision was made on 4 September 1998. I still fear persecution in my home country and I am married and have two children. One child was born in Australia. These are relevant consideration.

B. My application on Muin’s case

I was mislead by the letters from the Refugee Review Tribunal (Tribunal) to believe that the Tribunal had considered each of the documents addressed by the delegate in Part B of the delegate’s decision.

Based upon the letters I believed that the Tribunal had the Part B documents and if I had known that the Tribunal did not have them, I would have acted to correct that.

The Tribunal did not in fact receive those documents. The Tribunal decision indicates that the department of Immigration did not send any of the Part B documents to the Tribunal.

The Tribunal’s decision further indicates that the Tribunal did not in fact review those documents. Therefore the Tribunal did not conduct its review "on the papers" or, it did not examine those Part B documents. If I had known that the Tribunal had not considered all of the Part B documents to which the delegate had referred, I would have taken various steps to place the information in the Part B documents and submissions about its significance before the Tribunal.

I believed that the Tribunal had the Part B documents. If I had known that the Tribunal did not have them, I would have acted to correct that.

This ground should succeed as I establish the necessary substratum to enliven it. Therefore the Tribunal erred in law which went to its jurisdiction and exceeded its authority.

The Tribunal also did not bring to my attention or provide with an opportunity to respond to all adverse country information on Sri Lanka. The Tribunal did not send a letter pursuant to s.424 of the Migration Act 1958 inviting me to comment on the adverse information.

C. Conclusion

From my reasons stated above, the letters from the Refugee Review Tribunal were misleading, there were two explicitly misleading letters. I believed that I would have acted differently but for the letters. There was therefore a failure to accord my application with procedural fairness, and I suffered substantive unfairness.

There was a breach of s.424 and s 418 of the Migration Act in my case and I seek relief under s 75(v) of the Constitution, for the reasons stated above, I seek to grant the relief sought.

The Tribunal failed to accord my application with natural justice in making the Tribunal decision and the Tribunal’s decision was accordingly void and of no effect.’

11 Emmett J did not decide that a case particularised in the manner set out in the outline of submissions, if established by the evidence, is not an arguable case. All that Emmett J decided was that the affidavit evidence before him did not make out such a case. The applicants had not adduced evidence before the Federal Magistrate which, if accepted, would attract the operation of Muin and Lie, but the summary dismissal of their claim denied them the opportunity of adducing such evidence if they could.

12 In Rana v University of South Australia [2004] FCA 559 Lander J pointed out (at [41] and [73]) that because the Federal Magistrates Court Rules do not require an applicant to file all of his/her evidence with the application, in many cases the applicant’s cause of action may not be completely made out by the applicant’s affidavit filed with the initiating process. As his Honour said (at [74]) what the applicant must disclose is a reasonable cause of action – not that on the evidence presently available the applicant will succeed on that cause of action. There is nothing to indicate that any direction had been given to the applicants to file their evidence by a specified date.

13 There is at least an arguable case that the Federal Magistrate erred in accepting the Minister’s invitation to summarily dismiss the matter when the applicants had particularised a case which, if proven by evidence, could succeed: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 makes it plain that whether there has been a want of procedural fairness largely depends on the particular facts.

14 The Minister abjured reliance on Rule 16.05(2)(c) of the Federal Magistrates Court Rules as a reason for not granting leave.

15 I grant leave to the applicants to appeal from the decision of Driver FM summarily dismissing the application for review. I extend the time within which a notice of appeal from that order may be filed up to and including Friday 11 March 2005 and order that the costs of this application be costs in the appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 24 February 2005

	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 February 2005
Date of Judgment:	24 February 2005