SZIEX v Minister for Immigration and Citizenship [2008] FCA 329 (4 March 2008)

Last Updated: 27 March 2008

FEDERAL COURT OF AUSTRALIA

SZIEX v Minister for Immigration and Citizenship

[2008] FCA 329

SZIEX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1358 OF 2007

RARES J
4 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1358 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIEX Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:	RARES J
DATE OF ORDER:	4 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT:

1. Orders that, pursuant to Order 80, subrule 4 (1) of the Federal Court Rules, it is in the interests of justice to refer the appellant to Mark Leeming of Senior Counsel for legal assistance in relation to the appeal in this matter.

2. Orders that the time for filing and serving an amended notice of appeal fixed by Order 4 of Sundberg J on 14 November 2007 be varied to 28 March 2008.

3. Directs the appellant to file and serve her written submissions on or before 28 March 2008.

4. Directs that the first respondent file and serve his written submissions on the appeal on or before 11 April 2008.

5. Directs that the appellant file and serve written submissions, if any, in reply on or before 18 April 2008.

6. Directs that the appeal be stood over for hearing on 5 May 2008.

7. Grants liberty to any of the parties to apply on two days’ notice.
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 1358 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIEX Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	RARES J
DATE:	4 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In this matter, a judge of the court made an order by consent extending the time for the filing and serving of a notice of appeal up to 16 July 2007 and ordering that the draft notice of appeal filed on that day as an annexure to the applicant’s affidavit stand as the notice of appeal. That notice of appeal has these grounds:

‘1. No legal representative.

2. Little understanding of process and forms.

3. Difficulty in finding someone to help with completion of forms.’

2 The orders sought were:

‘1. The applicant wishes to remain in Australia and become an Australian citizen.’

3 Uninformed as to what could have been the basis on which leave to appeal was granted in preparing for today’s hearing, I read the papers. It occurred to me in doing so that there was one point that may have be arguable for which it was desirable in the interests of justice to appoint a lawyer to appear for the appellant under Order 80 of the Federal Court Rules. That arises under s 427(1)(d) of the Migration Act 1958 (Cth).

4 In the Federal Magistrate’s Court, her Honour found that the tribunal had arranged an investigation to be made in relation to obtaining the passport on which the applicant gained entry into Australia. That passport was in a name the appellant had said was a false name. She had surrendered it to the Department of Immigration and Citizenship and obtained a receipt for it after her detention in 2005. However, despite getting a receipt for that and another document for which she also had a separate receipt, the department was unable to produce those to the applicant during the course of her preparation for the hearing before the Refugee Review Tribunal.

5 Her Honour found that during the course of the hearing, the tribunal indicated to the legal representative or migration advisor of the appellant that it would make inquiries with the department as to the whereabouts of the missing passport and other document. The tribunal subsequently wrote a letter confirming that it was making inquiries to obtain the documents. The letter stated that the tribunal member did not consider that the information in the documents affected the decision, but had sought the information on behalf of the applicant ‘as agreed at the hearing’. In its reasons the tribunal said that it did not consider that the information in the documents would affect its decision in the matter and did not need to await advice as to the whereabouts and nature of the documents before making the decision. The Minister has confirmed that there is nothing in the appeal papers to indicate that the tribunal formally terminated the investigation into the documents other than as may appear in its reasons in which it affirmed the decision to refuse a visa.

6 In Applicant NAFF of 2002 v Minister for Immigration for Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at 10 [27], McHugh, Gummow, Callinan and Heydon JJ, said that if it invited an applicant to give evidence or present arguments in accordance with s 425(1), the tribunal’s duty to conduct the review included an obligation, where it thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, not to conclude the review prematurely by making a decision before its direction for the further steps was complied with or withdrawn.

7 In that case the direction was to allow some further submissions to be put to the tribunal after it had written to the applicant for review concerning some inconsistencies in his evidence which it had raised. The tribunal did not write to that applicant about the inconsistencies but instead made its decision. The Court held that, having identified to the applicant for review that it was troubled by a matter and intended to accord a procedure in which the applicant for review could address the matter, the tribunal was obliged to follow that through before deciding the review.

8 Their Honours pointed out that it may have been possible that the tribunal member failed to send the promised questions because on reflection she had thought everything she required had in fact already been put before her or that the resolution of the perceived inconsistencies was not crucial to deciding the review against the applicant. They said that if either of those explanations or any other existed, it would be expected that the tribunal member would have advanced it either by a letter to the appellant or in the detailed reasons for decision, but in that case, this was not done: NAFF 221 CLR at 12 [32].

9 Here, as I have observed, there was a statement in both the tribunal’s letter and its reasons about the matter. It may well be that that statement is the answer to the point which I perceive to be arguable. Nonetheless, it seems to me that in fairness to the appellant, particularly since the department lost the documents and has given no explanation for their whereabouts, and the tribunal at the time considered the matter to be such as merited an investigation under s 427(1)(d), the point ought be explored in a properly formulated appeal with an amended notice of appeal and counsel representing the appellant. For these reasons, I propose to appoint counsel under Order 80 to act for the appellant as she has indicated she wishes me to do.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated: 13 March 2008

Appellant:	Appeared in person
Counsel for the First Respondent:	D Godwin
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	4 March 2008
Date of Judgment:	4 March 2008