SZKNX v Minister For Immigration & Citizenship [2008] FCA 67 (15 February 2008)

PRACTICE & PROCEDURE – Appeal referred to Full Court of the Federal Court of Australia

Federal Court of Australia Act 1976 (Cth) s 25(1AA)(b)
Migration Act 1958 (Cth) s 477

SZKNX v Minister for Immigration and Citizenship & Anor [2007] FMCA 878
Minister for Immigration and Citizenship v SZKKC & Others (2007) 159 FCR 565

SZKNX v MINISTER FOR IMMGIRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1115 OF 2007

TRACEY J
15 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1115 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKNX Applicant
AND:	MINISTER FOR IMMGIRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	15 FEBRUARY 2008
WHERE MADE:	SYDNEY

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKNX Applicant
AND:	MINISTER FOR IMMGIRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TRACEY J
DATE:	15 FEBRUARY 2008
PLACE:	SYDNEY

1 By notice dated 23 April 2007 the applicant applied to the Federal Magistrates Court for orders which included an order setting aside a decision of the Refugee Review Tribunal ("the Tribunal") which had been handed down on 26 February 1999.

2 On 28 May 2007 a Federal Magistrate dismissed the application as incompetent: see SZKNX v Minister for Immigration and Citizenship & Anor [2007] FMCA 878. His Honour held, on the evidence before him, that the applicant had been "actually notified" of the Tribunal’s decision at some time before 17 March 1999. He held that, accordingly, time had run against the appellant, for the purposes of s 477 of the Migration Act 1958 (Cth) ("the Act"), from 1 December 2005. Any application made after 23 February 2006, as the present application was, was out of time and could not be entertained by the Federal Magistrates Court.

3 By application filed on 19 June 2007, the applicant sought leave to appeal from the decision of the Federal Magistrate.

4 The application for leave to appeal came on before me in Sydney on 2 November 2007. The Minister was represented by a solicitor. The applicant appeared in person and had the assistance of an interpreter. The Minister sought orders that the application for leave to appeal be granted, the orders of the Federal Magistrates Court be set aside and the matter be remitted to the Federal Magistrates Court. The solicitor appearing for the Minister advised the Court that the effect of the decision of a Full Court of this Court in Minister for Immigration and Citizenship v SZKKC & Others (2007) 159 FCR 565 (which was handed down after the Federal Magistrate’s decision) was that time had not run against the applicant under s 477 of the Act. It followed that the Federal Magistrate had erred by holding that the application before him was incompetent. A formal submission was made on behalf of the Minister that SZKKC was wrongly decided. The terms of the proposed order and their consequences were explained to the applicant and he consented to the making of the orders.

5 At the hearing on 2 November 2007 I pronounced the following orders by consent:

Before the orders could be entered the Minister, by Notice of Motion dated 19 November 2007, moved the Court for an order that the orders made on 2 November 2007 be set aside. In written submissions in support of the motion counsel for the Minister advised the Court that, on reflection, the Minister’s legal advisers had come to the view that the decision of the Federal Magistrates Court was "clearly correct". This was because the decision in SZKKC depended on statutory provisions which were not in force at the time of the Tribunal’s decision in the present case.

6 The Minister’s Notice of Motion was made returnable before me on 12 February 2008. Both the applicant and the Minister were represented by counsel. Following argument counsel for the Minister sought orders as follows:

The applicant did not oppose the making of these orders. The Minister did not resist an order that he pay the applicant’s costs of his Notice of Motion.

7 I determined to make the orders which were sought and advised the parties that I would publish my reasons at a later date. These are those reasons.

8 In their written submissions counsel for the applicant and the Minister both developed complex arguments as to whether or not, in the circumstances of the present case, the Full Court’s decision in SZKKC could be distinguished. It is sufficient for present purposes that I observe that the positions adopted by both parties are plainly arguable and that novel issues are raised. The potential exists for a further layer of complexity to be added: on 8 February 2008 Gleeson CJ and Crennan J granted the Minister leave to appeal to the High Court from the Full Court’s decision in SZKKC: see High Court S380 of 2007.

9 In these circumstances I consider that the applicant should have leave to appeal from the decision of the Federal Magistrates Court. The applicant’s draft notice of appeal dated 18 June 2007 will need to be amended to incorporate the ground based on the decision in SZKKC. It would, in my opinion, be undesirable to remit the matter to the Federal Magistrates Court for further hearing given that it has already ruled that it lacks jurisdiction to entertain the application – a ruling sought by the Minister in that Court. It would also be undesirable for the appeal to be heard by a single judge having regard to the complexity and novelty of the argument and the concern that there would be no right of appeal from any decision which might be made by a single judge exercising the appellate jurisdiction of the Court. There is the further consideration that the appeal may have to be determined by reference to SZKKC in the light of the reasons of the members of the High Court who hear the pending appeal from the Full Court. For these reasons I consider that the Court’s jurisdiction in relation to the present appeal should be exercised by a Full Court: see Federal Court of Australia Act 1976 (Cth), s 25(1AA)(b). I will so order.

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

Counsel for the Applicant:	Mr Mark Gibian

Counsel for the Respondent:	Mr Geoff Kennett

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	12 February 2008

Date of Judgment:	15 February 2008