AZAAM v Minister for Immigration and Citizenship
[2009] FCA 238
•12 March 2009
FEDERAL COURT OF AUSTRALIA
AZAAM v Minister for Immigration and Citizenship [2009] FCA 238
PRACTICE AND PROCEDURE – MIGRATION – application for extension of time – application for leave to appeal – decision refusing transfer of proceeding to Victorian Registry of Federal Magistrates Court – discussion of principles to be taken into account dealing with appeals against orders made in the exercise of the Court’s discretion – extension granted – leave to appeal granted
PRACTICE AND PROCEDURE – appeal heard instanter pursuant to s 25(1AA) of Federal Court of Australia Act 1976 (Cth) – no good reason for Federal Magistrate to reject application – application not opposed by respondent – refusal of application would put applicant at serious disadvantage – appeal allowed
Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 cited
House v The King (1936) 55 CLR 499 citedAZAAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
SAD 23 of 2009
LANDER J
12 MARCH 2009
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 23 of 2009
BETWEEN: AZAAM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
12 MARCH 2009
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The time within which the applicant has to file an application for leave to appeal be extended to 12 February 2009.
2.Leave to appeal be granted.
3.The appeal be allowed.
4.The order made by the Federal Magistrate on 22 August 2008 be set aside.
5.Registrar Christie’s orders of 17 September 2008 be discharged.
6.The proceeding be transferred to the Victorian Registry of the Federal Magistrates Court.
7.The hearing of the proceeding and the applicant’s application in the case of 12 February 2009 on 27 March 2009 be vacated.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 23 of 2009
BETWEEN: AZAAM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
12 MARCH 2009
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an application for an extension of time in which to apply for leave to appeal from an order of a Federal Magistrate made on 22 August 2008 refusing the applicant’s application to transfer this proceeding to the Victorian Registry.
The applicant commenced her proceeding in the Federal Magistrates Court on 21 July 2008 as an application for a judicial review of a decision of the Refugee Review Tribunal which affirmed the decision of the Minister for Immigration and Citizenship to refuse her a Protection visa. The applicant gave her home address as “35 Dalling Street 5522 Port Broughton” and her address for receiving mail as “24 Lascelles Avenue 5048 Hove”.
On 19 August 2008, prior to the matter coming on before the Court, the applicant applied to have the proceeding transferred to the Victorian Registry of the Federal Magistrates Court. That application was supported by an affidavit in which the applicant deposed that she had lived in Victoria at “266 Hawthorn Rd 3162 Caulfield/South Melb/VIC since 2nd August 2008”. She said her immigration case manager also resided in Melbourne. She stated that she was to attend a computer course in Melbourne at the Royal Melbourne Institute of Technology. She also said her husband had undergone one of two operations in Melbourne. These operations were “not possible” in South Australia.
The Minister did not oppose her application.
On 22 August 2008 Lindsay FM refused the application noting that the first return date of the proceeding was due before the Registrar on 26 August 2008. Federal Magistrate Lindsay said:
5.I have not formed any view about the matter, because the matter has not been argued, but on the face of Tribunal’s record of decision – which is the only document I have in relation to the matter – there are going to be significant difficulties confronting the applicant in that application. That is, her application for a protection visa.
...
11.The application is being assessed upon the basis of there being very scant affidavit material filed in relation to the circumstances which are said to justify the change of venue so soon after the filing of the application.
12.It is not at all clear why the move that has been made to Melbourne on 2 August, was not one that was contemplated as likely to occur at or about the time that consideration was being given to the filing of the application.
13.If I were to accede to the application for the transfer in venue, the matter would then need to be listed for directions in Melbourne. As to when that would be is a matter beyond my control, but I think I am entitled to infer there would be a likelihood of the listing of the matter for hearing being delayed.
...
19.The fact that the Minister, through his legal representative this morning, did not oppose the application, is a significant matter to be taken into account, although I have to bear in mind that the Minister’s views in relation to that have been formed in circumstances where they have not as yet been served with the process by the applicant. Nevertheless, the attitude the Minister adopts of not opposing the applicant is a relevant consideration.
...
21.The convenience of the parties is of course a significant matter and I accept if there is substance in the grounds advanced by the applicant as explaining her departure for Melbourne so soon after the application was filed in the Adelaide registry – if there is indeed substance in those matters – the balance of convenience may well lie with her.
22.My difficulty at the moment is that the applicant has not given me enough material to enable me to properly evaluate whether the proceedings should be transferred. We have got assertions in relation to the fact that the medical treatment is only available in Melbourne, but we need something to substantiate that in terms of either a medical report or the expression of a medical opinion or something of that nature.
23.Far more detail would be required in relation to the course that the applicant proposes to attend, and when she proposes to attend it in Melbourne, together with some information explaining what on the face of the material is an odd circumstance of the proceedings being filed here – and at the risk of repeating myself – and being followed up so shortly thereafter with the move to Melbourne.
24.In all the circumstances, I am not satisfied that enough material has been advanced by the applicant to enable me to make the order for transfer. Accordingly, the application for the transfer of the venue of the matter set forth in the Application in a Case filed on 19 August 2008, is refused.
At the end of August 2008 the applicant attempted to appeal from the decision of the Federal Magistrate but, I think, lodged the application for leave in the Federal Magistrates Court instead of this Court. There was then a delay whilst her application for a fee waiver was being considered. As a result, this application was not accepted for filing until 12 February 2009.
In the meantime, orders were made by the Registrar of the Federal Magistrates Court for the preparation of the Court Book and for filing written submissions. The hearing of the application was set for 26 February 2009.
On 20 January 2009 the applicant sought to have the Court provide a telephone conference so that she could appear at the hearing because she was in Melbourne. It would seem from what she wrote that she thought an appeal had then been filed. The Court refused her request:
Please be advised you or your legal representative must appear for the hearing of your application for review. Should there be no appearance orders may be made in your absence.
The Court separately sent her the documents to seek a fee waiver and for this application.
On 12 February 2009 the applicant made a further application in the Federal Magistrates Court:
1. Order to seek leave to appeal/extended time frame.
2. Order which revoces (sic) Magistrate Lindsey’s judgement (sic).
3.Order to have the Federal matter RRT appeal transfered (sic) from South Australia to Melbourne.
The application and the proceeding were set down for 20 February 2009. It is not clear why the hearing date was changed from 26 February 2009.
On the same day this application for an extension of time to apply for leave was finally accepted for filing in this Court. I directed that the application be returned on 3 March 2009. I also indicated that I would allow the applicant to appear by video.
The applicant was unable to appear on 20 February 2009 but on the same day the Federal Magistrate adjourned the application and the proceeding to 27 March 2009.
The Court noted that “the applicant is granted leave to appear by way of video link from Melbourne”.
The first respondent did not oppose the applicant’s application to transfer the matter. The first respondent submitted that in considering an application for a transfer of the proceeding on this application the Court must address the indicia in rule 8.01 of the Federal Magistrates Court Rules 2001.
The first respondent also submitted that the Court should not grant leave to appeal without identifying an error of the type described in House v The King (1936) 55 CLR 499 at 504-5 or find that the exercise of the discretion by the Federal Magistrate had miscarried.
The first respondent indicated, however, that if the Court were of the opinion that an extension of time should be granted and leave to appeal be given, then the first respondent would consent to an order for transfer of the proceeding.
I think, with respect, that the Minister was right to adopt the attitude to which I have referred which, in my opinion, was entirely reasonable.
Clearly, I would not allow an extension of time unless I were of the opinion that leave should be given and I would not grant leave unless I thought the appeal had reasonable prospects of success. However, if the application were granted and leave given, I could hear the appeal instanter: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth).
The application is late and is against an order made in the exercise of the Court’s discretion in a matter of practice and procedure. The obstacles facing the applicant are therefore high.
In House v The King 55 CLR 499 at 504-505, Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, the Court said:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. [1978] V.R. 431, at p. 440; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. (1952) 77 W.N. (N.S.W.) 143, at p. 146. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) (1946) 46 S.R. (N.S.W.) 318, at p. 323:
“... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
See also, Brambles Holdings Ltd. v. Trade Practices Commission (1979) 40 F.L.R. 364, at p. 365; 28 A.L.R. 191, at p. 193; Dougherty v. Chandler (1946) 46 S.R. (N.S.W.) 370, at p. 374. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.
The proceeding is listed for hearing on 27 March 2009. The Federal Magistrates Court has now advised that the applicant can appear by video should this Court entertain the applicant’s application and appeal.
It does not seem that there was any good reason to reject the applicant’s application to transfer the proceeding to the Victorian Registry. The proceeding had only recently been commenced. Because of the provisions of s 477 of the Migration Act 1958 (Cth) the applicant could not delay the commencement until she moved to Victoria.
The applicant had moved to Victoria where she was a resident. She had commenced study there. Her immigration case manager resides in Melbourne. Her husband was undergoing surgery in Victoria. The application was not opposed. The proceeding had not been before the Court and no directions had been made or any date for the hearing of the application fixed.
The Federal Magistrate said that the applicant had not provided enough material and needed “far more detail”. Her affidavit was abrupt and to the point but, of course, English is not her first language, but that does not mean she had not provided enough material.
I am not sure how the Federal Magistrate would have been helped by knowing the information he spoke of in [22] of his reasons. She did not have to explain why she was now living in Melbourne but in fact she did. It was not odd that she started the proceeding in Adelaide and shortly thereafter moved to Melbourne. Her application was subject to the strict time limits in s 477 of the Act. There could not have been anything sinister about her moving to Melbourne. She had not yet appeared in the Federal Magistrates Court in Adelaide. It could not be thought that she was seeking to avoid any particular judicial officer at that time. She simply had moved.
With respect to the Federal Magistrate who thought otherwise, there was no reason to refuse the applicant’s application especially when to do so would put the applicant at a serious disadvantage. That disadvantage was demonstrated when the matter next came on for hearing before the Federal Magistrate when he refused her request to appear by telephone. She simply did not have the means to appear.
This is one of the cases where the order is so unjust that it may be inferred that the exercise of the discretion miscarried. The injustice must be remedied, notwithstanding that the Federal Magistrate would now apparently allow the applicant to appear by video.
For those reasons, I make the following orders:
1.The time within which the applicant has to file an application for leave to appeal be extended to 12 February 2009.
2.Leave to appeal be granted.
3.The appeal be allowed.
4.The order made by the Federal Magistrate on 22 August 2008 be set aside.
5.The orders made by Registrar Christie on 17 September 2008 be set aside.
6.The proceeding be transferred to the Victorian Registry of the Federal Magistrates Court.
7.The hearing date of 27 March 2009 of the proceeding and the applicant’s application in the case of 12 February 2009 be vacated.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 20 March 2009
Counsel for the Applicant: The Applicant appeared in person Counsel for the First and Second Respondents: Mr P D’Assumpcao Solicitor for the First and Second Respondents: Australian Government Solicitor
Date of Hearing: 12 March 2009 Date of Judgment: 12 March 2009
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